[Federal Register Volume 83, Number 202 (Thursday, October 18, 2018)] [Rules and Regulations] [Pages 52878-52900] [FR Doc No: 2018-22114]

Vol. 83

Thursday,

No. 202

October 18, 2018

Part II

Department of Transportation

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Pipeline and Hazardous Materials Safety Administration

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49 CFR Parts 172 and 175

Hazardous Materials: Notification of the Pilot-in-Command and Response

to Air Related Petitions for Rulemaking; Final Rule

Federal Register / Vol. 83 , No. 202 / Thursday, October 18, 2018 /

Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 172 and 175

[Docket No. PHMSA-2015-0100 (HM-259)]

RIN 2137-AF10

Hazardous Materials: Notification of the Pilot-in-Command and

Response to Air Related Petitions for Rulemaking

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

Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: PHMSA, in consultation with the Federal Aviation

Administration, issues this final rule to align the U.S. Hazardous

Materials Regulations with current international standards for the air

transportation of hazardous materials. These amendments revise certain

special provisions, packaging requirements, information to the pilot-

in-command requirements, and exceptions for passengers and crewmembers.

In addition to facilitating harmonization with international standards,

several of the amendments in this rule are responsive to petitions for

rulemaking submitted by the regulated community.

DATES:

    Effective date: This rule is effective October 18, 2018.

    Delayed compliance date: Unless otherwise specified, compliance

with the amendments adopted in this final rule is required beginning

October 18, 2019.

FOR FURTHER INFORMATION CONTACT: Aaron Wiener, Office of Hazardous

Materials Standards, International Standards,<PHONE_NUMBER>, Pipeline

and Hazardous Materials Safety Administration, U.S. Department of

Transportation, 1200 New Jersey Avenue SE, 2nd Floor, Washington, DC

20590-0001.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. Comment Discussion

    A. Transportation by Air Intermediate Packaging Requirements for

Certain Low and Medium Danger Hazardous Materials (P-1637)

    B. Quantity Limits for Portable Electronic Medical Devices

Carried by Passengers, Crewmembers, and Air Operators (P-1649)

    C. Information to the Pilot-in-Command, Harmonization With the

ICAO Technical Instructions (P-1487)

    D. Amendments to Package Inspection (P-1671) and Securing

Requirements

III. Section-by-Section Review

IV. Regulatory Analyses and Notices

    A. Statutory/Legal Authority for This Rulemaking

    B. Executive Order 12866, Executive Order 13563, and DOT

Regulatory Policies and Procedures

    C. Executive Order 13771

    D. Executive Order 13132

    E. Executive Order 13175

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

Policies and Procedures

    G. Paperwork Reduction Act

    H. Regulation Identifier Number (RIN)

    I. Unfunded Mandates Reform Act

    J. Environmental Assessment

    K. Privacy Act

    L. Executive Order 13609 and International Trade Analysis

    M. National Technology Transfer and Advancement Act

I. Background

    On December 5, 2016, PHMSA (also ``we''), in consultation with the

Federal Aviation Administration (FAA), published a notice of proposed

rulemaking (NPRM) [Docket No. PHMSA-2015-0100 (HM-259); 81 FR 87510] to

amend the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180)

to align more closely with certain provisions of the International

Civil Aviation Organization's Technical Instructions for the Safe

Transport of Dangerous Goods by Air (ICAO Technical Instructions).

These amendments update miscellaneous regulatory requirements for

hazardous materials offered for transportation, or transported, in

commerce by aircraft. In addition, the NPRM proposed amendments in

response to four petitions for rulemaking submitted by the regulated

community. The petitions are included in the docket for this proceeding

and are discussed at length in Section II (Comment Discussion) of this

rulemaking. In the NPRM, the phrase ``notification to the pilot-in-

command'' and the acronym ``NOTOC'' were used. In this final rule,

consistent with the ICAO Technical Instructions, the phrase

``information to the pilot-in-command'' is used.

II. Comment Discussion

    In response to the NPRM [81 FR 87510], PHMSA received comments from

the following organizations:

 Air Line Pilots Association (ALPA)

 Airlines for America (A4A)

 Council on Safe Transportation of Hazardous Articles (COSTHA)

 Dangerous Goods Advisory Council (DGAC)

 United Parcel Service (UPS)

See below for discussion of the comments received and PHMSA's

determined action in this final rule. This section addresses comments

made to proposals to revise the HMR based on petitions for rulemaking.

Additional comments are addressed in Section III (Section-by-Section

Review) of this rulemaking.

A. Transportation by Air Intermediate Packaging Requirements for

Certain Low and Medium Danger Hazardous Materials (P-1637)

    The DGAC petitioned PHMSA to remove the additional intermediate

packaging requirements found in special provisions A3 and A6, see 49

CFR 172.102(b)(2), by deleting these special provisions and all

references to them in the Hazardous Materials Table (HMT) in Sec.

172.101. See P-1637.\1\ Special provisions A3 and A6 apply to certain

commodities as assigned in column (7) of the HMT when transported by

aircraft:

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    \1\ See https://www.regulations.gov/docket?D=PHMSA-2014-0094.

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     Special provision A3 states that if glass inner packagings

are used for transportation of referenced commodities, they must be

packed with absorbent material in tightly closed metal receptacles

before being packed in outer packagings.

     Special provision A6 states that if plastic inner

packagings are used for transportation of referenced commodities, they

must be packed in tightly closed metal receptacles before being packed

in outer packagings.

    The petitioner notes that the packaging requirements imposed by

special provisions A3 and A6 are domestic provisions not found in the

ICAO Technical Instructions and that maintaining these differences

creates both a trade barrier to U.S. exports and a burden to the

domestic market. The petitioner contends that the requirement for

``metal receptacles'' is overly restrictive and provides a competitive

advantage to shippers in countries that allow these products to be

shipped without additional intermediate packagings.

    The petitioner further notes that the following requirements in

Sec.  173.27(d) and (e) of the HMR make special provisions A3 and A6

unnecessary: (1) When transported by air, inner packagings of Packing

Group (PG) I materials currently assigned A3, A6, or both are already

required to be packed in either a rigid and leakproof receptacle or an

intermediate packaging containing sufficient absorbent material to

absorb the entire contents of the inner

packaging before packing the inner packaging in its outer package; and

(2) PG II and III commodities are already subject to secondary closure

requirements. Therefore, the petitioner asks that the intermediate

packaging requirements in special provisions A3 and A6 be removed.

    Section 173.27(d) of the HMR establishes the type of closure

required for transportation of liquid hazardous materials by air. It

states that the inner packaging for PG I liquid hazardous materials

must have a secondary means of closure applied. The inner packaging for

PG II or III liquid hazardous materials must have a secondary closure

applied unless the secondary closure is impracticable. If the secondary

closure is impracticable, the closure requirements for PG II and III

liquids may be satisfied by securely closing the inner packaging and

placing it in a leakproof liner or bag before placing the inner

packaging in the outer packaging.

    Section 173.27(e) sets the absorbency requirements for PG I liquid

hazardous materials of Classes 3, 4, or 8, or Divisions 5.1 or 6.1,

when the materials are packaged in glass, earthenware, plastic, or

metal inner packagings and offered for transport by air. It requires

that inner packagings be packed in a rigid and leakproof receptacle or

intermediate packaging that is sufficiently absorbent to absorb the

entire contents of the inner packaging before the inner package is

packed in the outer package.

    In the NPRM, PHMSA proposed to: (1) Amend special provision A3 in

Sec.  172.102 to authorize rigid and leakproof receptacles for

intermediate packaging; (2) remove references to special provision A3

from assigned PG I entries in the HMT; and (3) remove references to

special provision A6 from assigned liquids in the HMT.

    PHMSA received positive feedback from commenters. Specifically,

ALPA and UPS expressed support for this amendment. The DGAC also

expressed support for the proposed amendment; however, consistent with

their petition, DGAC continues to believe that the secondary closure

requirements in Sec.  173.27(d) satisfy the provisions in A3, making A3

unnecessary for PG II and III materials.

    As stated in the NPRM, PHMSA agrees that current requirements in

Sec.  173.27(d) and (e) make special provisions A3 and A6 unnecessarily

redundant for liquid PG I materials. We also agree that the

requirements in Sec.  173.27(d) for inner packagings to have a

secondary means of closure or a leakproof liner or bag adequately

address the hazards that special provision A6 was designed to mitigate

for PG II and III materials. As commenters did not provide any

supplemental information or justification for the removal of special

provision A3 from the assigned PG II and III entries other than

originally included in the petition, PHMSA maintains its position

stated in the NPRM that the material of construction of the inner

packaging referenced in special provision A3 (glass) necessitates an

intermediate packaging to perform a containment function in the event

an inner packaging breaks. Therefore, PHMSA is maintaining the

intermediate packaging requirements for PG II and III materials in

special provision A3; however, we are amending special provision A3 to

authorize rigid and leakproof receptacles for use as intermediate

packagings that are currently limited to metal construction. This will

provide a wider range of intermediate packaging options to shippers of

hazardous materials subject to special provision A3.

    Additionally, in the NPRM, PHMSA solicited comment on maintaining

special provision A6 for currently assigned solid materials or whether

revisions to the packaging provisions for these materials should be

considered in a future rulemaking. Special provision A6 is currently

assigned to four solid materials (UN Nos. 1326, 1390, 1889, and 3417)

in the HMT. Unlike the liquids currently assigned special provision A6,

these solid materials are not subject to the intermediate or secondary

packaging provisions in Sec.  173.27. PHMSA received two comments in

support of removing special provision A6 from the currently assigned

solid materials. The DGAC commented that the special provision is

unnecessary because these solid materials are not subject to the

intermediate or secondary packaging requirements. UPS supports removing

the special provision provided the packaging provisions in Sec.  173.27

are modified to require secondary or intermediate containment for these

commodities. Based on the comments received, PHMSA will consider

removing special provision A6 from the four solid materials in a future

rulemaking.

B. Quantity Limits for Portable Electronic Medical Devices Carried by

Passengers, Crewmembers, and Air Operators (P-1649)

    Phillips Healthcare petitioned PHMSA to revise Sec.

175.10(a)(18)(i) to increase the quantity limits applicable to the

transportation of portable medical electronic devices (e.g., automated

external defibrillators (AED); nebulizers; continuous positive airway

pressure (CPAP) devices containing lithium metal batteries; and spare

batteries) carried on aircraft by passengers and crewmembers. See P-

1649.\2\ The current HMR requirements limit all lithium metal batteries

carried on an aircraft by passengers or crewmembers for personal use to

a lithium content of not more than 2 grams per battery. The ICAO

Technical Instructions allow portable medical electronic devices

containing lithium metal batteries and spare batteries for these

devices to contain up to 8 grams of lithium content per battery to be

carried by passengers with the approval of the operator. The petitioner

stated:

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    \2\ See https://www.regulations.gov/docket?D=PHMSA-2015-0107.

    A global increase in air travel, as well as a growing aged

population in many countries, makes it reasonable to assume that

there will be a significant increase in older passengers and

passengers with illness. An automated external defibrillator can

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make the difference between life and death during cardiac arrest.

    The petitioner further asserted that the current HMR requirements

prohibit many people who need to travel with their portable medical

electronic devices from doing so because the lithium content exceeds

the amount allowed.

    In addition, the petitioner noted that increasing the quantity

limits for portable medical electronic devices containing lithium metal

batteries and spare batteries would be consistent with section 828 of

the ``FAA Modernization and Reform Act of 2012'' (Pub. L. 112-98, 126

Stat. 133; Feb. 14, 2012),\3\ which prohibits the Secretary of

Transportation from issuing or enforcing any regulation or other

requirement regarding the air transportation of lithium cells or

batteries if the requirement is more stringent than the requirements of

the ICAO Technical Instructions.

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    \3\ See http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt381/pdf/CRPT-112hrpt381.pdf.

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    In the NPRM, PHMSA proposed to amend Sec.  175.10(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.

    PHMSA received three comments from A4A, COSTHA, and DGAC in support

of the proposed amendment.

A4A commented that the current inability of passengers and crewmembers

to carry lithium metal battery-powered portable medical electronic

devices exceeding 2 grams imposes unnecessary travel restrictions for

passengers with medical needs requiring the equipment. DGAC commented

that harmonization with the ICAO Technical Instructions on this issue

will benefit the travelers by allowing them to carry life-saving

medical devices.

    In contrast, ALPA provided comments that oppose the proposed

amendment, stating that they do not support changing regulations based

on the end use of batteries. Specifically, ALPA notes ``batteries

installed in a medical device can be the same as used in a non-medical

device . . . and are not inherently safer than non-medical devices.''

PHMSA agrees with ALPA that hazardous materials are not generally

regulated by end-use application when offered as cargo, but rather on

the hazard posed during transport. In addition, PHMSA does not dispute

ALPA's assertion that lithium batteries used in medical devices present

the same hazard as lithium batteries used in non-medical devices.

However, the exceptions for passengers and crewmembers prescribed in

Sec.  175.10 do not apply to cargo consignments. Instead, they are

based on the need of individual passengers and crewmembers to carry

personal items containing relatively small quantities of hazardous

materials for common ``end-use'' items subject to certain conditions.

In the 2011-2012 edition of the ICAO Technical Instructions, the 2-gram

limit was expanded for medical devices only. Specifically, the limit

was expanded to allow for medical devices known to exceed these limits,

notably Automated External Defibrillators (AEDs), which typically had a

lithium content between 4 and 8 grams.\4\ Therefore, PHMSA is adopting

the amendment to Sec.  175.10(a)(18) as proposed in the NPRM consistent

with the provisions of the ICAO Technical Instructions.

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    \4\ See paragraph 5.4.10 of ICAO Dangerous Goods Panel Working

Paper DGP/22-WP/100 (October 2009).

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    In addition to the comments above, A4A and COSTHA recommended that

PHMSA extend this allowance for lithium metal battery-powered portable

medical electronic devices exceeding current regulatory limits to all

portable electronic devices powered by lithium metal batteries. They

stated that maintaining differences between medical and non-medical

devices increases training costs, adds confusion, and the risk of

potential inadvertent non-compliance by aircraft operators who elect to

approve portable medical devices exceeding 2 grams of lithium content

per battery, but not exceeding 8 grams of lithium content per battery.

As this proposal was not presented in the December 5, 2016 NPRM, it is

considered beyond the scope of the rulemaking and is not addressed in

this final rule.

C. Information to the Pilot-in-Command, Harmonization With the ICAO

Technical Instructions (P-1487)

    UPS petitioned PHMSA to revise the information to the pilot-in-

command requirements to match the ICAO Technical Instructions. The

pilot-in-command must receive the information in order to appropriately

consider the presence, amount, and location of hazardous materials

onboard the aircraft in an emergency. See P-1487.\5\ This information,

which also includes the hazard classification, proper shipping name,

and packing group of the hazardous materials onboard the aircraft can

help inform the decision-making of the pilot-in-command. If an in-

flight emergency did occur, the pilot-in-command or the operator's

ground personnel would need to convey information to air traffic

control and/or emergency responders in order to support a safe and

effective response.

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    \5\ See https://www.regulations.gov/docket?D=PHMSA-2006-26159.

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    In its petition, UPS asked PHMSA to amend the domestic information

to the pilot-in-command requirements in Sec.  175.33 to reduce what it

considers extraneous information and more closely align the HMR with

existing international practices. The petitioner stated that

harmonization with more elements of the ICAO Technical Instructions'

information to the pilot-in-command requirements will reduce the

regulatory burden for operators, as well as the costs associated with

training employees and contract personnel to two sets of standards.

    In the NPRM, PHMSA proposed adding each of the following

requirements to the HMR:

    1. The operator must provide to the flight dispatcher \6\ the same

information as provided on the information to the pilot-in-command;

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    \6\ For the purposes of this rulemaking the ``flight

dispatcher'' refers to the personnel with responsibilities for

operational control of the aircraft (e.g., the flight operations

officer, flight dispatcher, or designated ground personnel

responsible for flight operations).

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    2. The information must be provided to the pilot-in-command and

flight dispatchers prior to an aircraft moving under its own power;

    3. The air operator must retain the pilot-in-command's confirmation

via signature or other appropriate indication that the required

information was received; and

    4. The person responsible for loading the aircraft must provide a

signed confirmation or other form of indication that no damaged or

leaking packages or packages showing evidence of damage or leakage were

loaded on the aircraft.

    PHMSA received comments from A4A, ALPA, DGAC, COSTHA, and UPS

providing general support for aligning the information to the pilot-in-

command requirements with the ICAO Technical Instructions. UPS

commented, ``This action will improve consistency between the HMR and

ICAO, thereby promoting clarity of requirements, and overall compliance

and safety in flight for operations around the world.'' DGAC commented,

``. . . Harmonizing the provisions of the HMR with those in the ICAO

will provide for enhanced safety, minimize potential for errors,

enhance training in only one set of harmonized requirements, and

otherwise minimize costs of maintaining two systems of operations.''

    These and other general changes discussed below will result in

PHMSA harmonizing with the ICAO Technical Instructions in regards to

the information required to be provided in the information to the

pilot-in-command.

     Requirement that the operator provide the same information

to the flight dispatcher that is required to be provided to the pilot-

in-command. In an emergency, a flight dispatcher may be more readily

able to communicate with air traffic control and emergency responders

about the nature and location of hazardous materials onboard an

aircraft than the pilot-in-command. Harmonizing with the ICAO Technical

Instructions and requiring flight dispatchers to have the same

information as the pilot-in-command regarding the nature, amounts, and

locations of hazardous materials improves information sharing in an

emergency situation. Incorporating this provision into the HMR is also

relevant to the National Transportation Safety Board's (NTSB) Safety

Recommendation A-11-042, which recommends that the FAA ``develop a

method to quickly communicate information regarding the number of

persons on board and the presence of hazardous materials to emergency

responders when airport

emergency response or search and rescue is activated.'' \7\

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    \7\ See http://www.ntsb.gov/safety/safety-recs/recletters/A-11-039-047.pdf.

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    Consistent with the ICAO Technical Instructions, operators are

responsible to specify the personnel to be provided the information to

the pilot-in-command in their operations manual and/or other

appropriate manuals. The term ``provided'' covers the information to

the pilot-in-command when made available in a handwritten, printed, or

electronic format.

    Providing an additional and potentially quicker means for airport

rescue and firefighting (ARFF) personnel to receive the information to

the pilot-in-command underscores that the ARFF community is as much an

intended consumer of the information as is the pilot-in-command. ARFF

training in hazardous materials incidents is required under 14 CFR part

139, which specifies the FAA's requirements for certificated airports.

    PHMSA received comments from A4A, COSTHA, and UPS concerning use of

the term ``written'' in the proposed paragraphs Sec.  175.33(a) and

(b)(2). A4A and COSTHA commented that the ``accurate and legible

written information'' language in proposed Sec.  175.33(a) and the

``copy of the written notification'' language in proposed Sec.

175.33(b)(2) do not support electronic notification method as air

operators continue to move away from paper documents towards electronic

systems for messaging and direct information upload to, and retrieval

from, the cockpit. In their comments, A4A stated, ``Electronic storage

and messaging allows the most up-to-date and accurate documentation to

be retrieved by flight crews, dispatchers and ground personnel at any

time, providing a safety enhancement in addition to considerable cost

and environmental benefits.'' UPS commented that including the

``legible written'' language in the proposed Sec.  175.33(a) allows for

the interpretation that a printed information to the pilot-in-command

is required for issuance to the pilot-in-command, as well as having the

unintended effect of requiring printed information to be furnished to a

flight dispatcher or equivalent operator employee. UPS explained that

large carrier operations such as theirs would face difficulties as

``information is readily available in other formats and the task of

managing printed copies would be inefficient and contrary to

technological advances.'' The three commenters provided similar

alternative language removing the word ``written'' from paragraphs (a)

and (b)(2).

    The intent of the NPRM was to more closely align the information to

the pilot-in-command provisions in the HMR with those in the ICAO

Technical Instructions. Consistent with the language in the NPRM, the

current requirements in both regulations require that the operator of

the aircraft provide the pilot-in-command with ``accurate and legible

written information.'' Chapter 7;4.1.1 b) of the ICAO Technical

Instructions requires that the aircraft operator provide personnel with

responsibilities for operation control of the aircraft (e.g., flight

dispatcher) with the same information required to be provided to the

pilot-in-command. The ICAO requirement is followed by an example

indicating that an operator may satisfy this requirement by providing

the flight dispatcher with a copy of the written information provided

to the pilot-in-command. However, the requirement in the ICAO Technical

Instructions, while using the phrase ``copy of the written

information'' as an example, does not specify the format or method in

which the information is provided to the flight dispatcher, but rather

only that the information is the same as provided to the pilot-in-

command.

    PHMSA agrees that the term ``written'' may not be clear to everyone

that the use of an electronic format for the information to the pilot-

in-command is allowed. Based on the information provided by the three

commenters, this final rule revises paragraphs (a) and (b)(2) to

clarify that for the purposes of Sec.  175.33, ``written'' means in a

handwritten, printed, or an electronic format. Therefore, the

information provided to both the pilot-in-command and the flight

dispatcher may be provided legibly in writing (e.g. handwritten,

printed, or electronic format) provided all requirements of the section

are met. We recognize the trend of providing the pilot-in-command and

flight dispatchers with operational data through electronic means and

that the use of electronic means to supplement the pilot-in-command

with information about cargo, including hazardous materials, is

consistent with current practices. The FAA recognizes that there are

multiple electronic means that operators may use to provide information

to their pilot-in-command and flight dispatchers.

     Requirement that the information to the pilot-in-command

be provided to the pilot and flight dispatchers prior to an aircraft

moving under its own power. The current HMR require the pilot-in-

command to receive written information meeting the requirements in

Sec.  175.33 as early as practicable before departure of the aircraft.

Consistent with the ICAO Technical Instructions, PHMSA believes that

this information should be provided to both the pilot-in-command and

flight dispatchers prior to the aircraft moving under its own power.

The pilot-in-command should not be burdened with additional information

or processes during taxiing and final preparations for takeoff. This

change would also allow the pilot-in-command additional time to address

any safety concerns identified after a review of the information before

taxiing. For example, the pilot-in-command will be more likely to have

the opportunity to physically inspect (e.g., packages, paperwork,

etc.), ask questions, or otherwise act on the information if they

receive the information prior to the aircraft moving.

     Requirement that the air operator obtains and retains a

confirmation (e.g., a signed confirmation from the pilot-in-command or

notation via an operator's computer system) that the information was

received by the pilot-in-command. The current HMR require the

information to be provided to the pilot-in-command by the operator and

for the operator to maintain a record of the information to the pilot-

in-command for 90 days, but there is no requirement for the pilot-in-

command to indicate receipt of the information. To be consistent with

the ICAO Technical Instructions, PHMSA is requiring the operator to

obtain and retain documentation of the pilot-in-command's receipt of

the information.

     Requirement for the information provided to the pilot-in-

command to have a signed confirmation or some other indication from the

person responsible for loading the aircraft that no evidence of damaged

or leaking packages were loaded on the aircraft. The current HMR

require a confirmation that no damaged or leaking packages were loaded

on board an aircraft, but there is no requirement for a signature or

other means of verification from the person responsible for loading the

aircraft. The requirement for the information provided to the pilot-in-

command to have a signed confirmation or other indication from the

person responsible for loading ensures that there is no evidence of

damage to or leakage from the packages or evidence of leakage from the

unit load device loaded on an aircraft which provides for a more

accountable safety system.

     General harmonization with the ICAO Technical Instructions

in regards to information required to be provided in the information to

the pilot-in-

command associated with (and linked to) requirements for shipping

papers. The current HMR require the additional description requirements

of Sec. Sec.  172.202 and 172.203 to be provided in the information to

the pilot-in-command. These additional information requirements

necessitate the inclusion of items such as descriptions of the physical

or chemical form of radioactive materials, an indication that the

materials being transported are packaged under limited quantity

exceptions, an indication that marine pollutants are present, etc. By

aligning with the ICAO Technical Instructions, PHMSA believes that the

removal of additional description requirements from the information to

the pilot-in-command will result in decreased complexity and training

costs for operators without negatively impacting safety. In the NPRM,

we invited comment from the ARFF community pertaining to the effect

this proposed rule would have had on past incident or accident

responses; however, as no comments were received, we are removing the

additional description requirements from the information to the pilot-

in-command requirements as proposed.

    The current HMR contain a requirement that the information to the

pilot-in-command prepared in accordance with the ICAO Technical

Instructions must also include any additional elements required to be

shown on shipping papers by subpart C of part 171 of this subchapter.

The additional elements currently required are: An indication of the

``EX Number'' for Division 1.4G safety devices; an indication of ``RQ''

and technical names if applicable for hazardous substances; an

indication that the hazardous material is a ``Waste'' for hazardous

wastes; and the inclusion of the words ``Poison-Inhalation Hazard'' or

``Toxic-Inhalation Hazard'' and the words ``Zone A,'' ``Zone B,''

``Zone C,'' or ``Zone D'' for gases, or ``Zone A'' or ``Zone B'' for

liquids, as appropriate for Division 2.3 materials meeting the

definition of a material poisonous by inhalation. PHMSA is removing the

requirement for the information to the pilot-in-command made in

accordance with the ICAO Technical Instructions to include these

additional elements. This information will still be required on

shipping papers.

    General harmonization between the HMR information to the pilot-in-

command requirements and those found in the ICAO Technical Instructions

ensures consistency for operators subject to both regulatory systems,

thus reducing the cost of complying with two different sets of

standards. However, the HMR will continue to require that the date of

the flight be included on the information to the pilot-in-command,

while the current ICAO Technical Instructions do not. Maintaining the

flight date adds another safety control to ensure the pilot-in-command

has the correct form. As many operators already include the date as a

part of their information provided to the pilot-in-command, this

amendment will not create an undue administrative burden. PHMSA

received one comment from UPS providing support for maintaining the

flight date on the information to the pilot-in-command. The ICAO

Dangerous Goods Panel (DGP) took action in October 2016 to amend the

ICAO Technical Instructions to include the flight date as one of the

required fields on the information to the pilot-in-command. This change

will align with the HMR and is expected to be reflected in the 2019-

2020 ICAO Technical Instructions.

    In the NPRM, PHMSA proposed maintaining the existing requirement

that a hazardous material carried under the terms of a special permit

must be indicated on the information to the pilot-in-command. PHMSA

received a comment from UPS stating that the existing term ``special

permit'' is too focused on U.S. regulations. They note that parallel

ICAO provision, in Part 7; Section <IP_ADDRESS> j) refers to a requirement

to include, ``where applicable, an indication that the dangerous goods

are being carried under a State exemption.'' UPS suggested that the

proposed language should be broadened to include a reference to an

``equivalent document issued by the appropriate authority of another

country,'' thereby reducing potential variation from the ICAO

requirement. PHMSA agrees. Therefore, consistent with the ICAO

Technical Instructions, this final rule adds ``or under a State

exemption as prescribed in the ICAO Technical Instructions'' in

addition to ``special permit.'' ICAO defines ``exemption'' as being

equivalent to a special permit under the HMR. An ``exemption'' does not

include approvals, which are not required to be indicated on the

information to the pilot-in-command.

    In their comments, A4A and COSTHA stated that carriers do not

prepare the information to the pilot-in-command when the hazardous

material does not require a shipping paper, noting that the HMR do not

require a shipping paper for lithium cells or batteries prepared in

accordance with Sec.  173.185(c) or the corresponding Section II of

ICAO Packing Instructions (PI) 965-970. The commenters noted that part

7;4.1.11, Table 7-9 provides a list of dangerous goods not required to

appear in the information to the pilot-in-command. The list includes

entries for lithium batteries consigned under the entries UN3090,

UN3091, UN3480, and UN3481 when meeting the requirements of Section II

of PI 965-970. The commenters noted that the HMR do not have a

corresponding exception for these same materials prepared even though a

shipping paper is not required. Both commenters suggested incorporating

the ICAO provisions by either adding Table 7-9 into Sec.  175.33 or by

adding a specific exception stating that lithium batteries prepared in

accordance with Sec.  173.185(c) are not required to appear on the

information to the pilot-in-command. COSTHA suggested adding exceptions

in Sec.  175.33 for all materials listed in Table 7-9 of the ICAO

Technical Instructions such as excepted quantities and ``UN3373 and

Biological substance, Category B'' among others.

    PHMSA agrees that in instances when a shipping paper is not

required, the information for that material is generally not required

to appear on the information to the pilot-in-command either. Because a

shipping paper contains the information from which the elements of the

information to the pilot-in-command are derived, it is impracticable to

prepare the information for materials not requiring a shipping paper.

We also agree that the HMR do not have a clear exception from the

information to the pilot-in-command requirement for lithium batteries

prepared in accordance with Sec.  173.185(c), which corresponds with

Section II of ICAO PI 965-970. Other materials listed in Table 7-9,

such as those offered in excepted quantities (Sec.  173.4a), and

``UN3373 and Biological substance, Category B'' (Sec.  173.199) are

sufficiently addressed in their relevant section of the HMR, with an

indication that the materials are not otherwise subject to the

requirements of the subchapter, to include the requirements of Sec.

175.33, if the applicable conditions are met. Therefore, this final

rule clarifies in Sec.  175.33(a)(13) that lithium batteries prepared

in accordance with Sec.  173.185(c) are not required to appear on the

information to the pilot-in-command, which corresponds with Section II

of the applicable ICAO packing instruction.

D. Amendments to Package Inspection (P-1671) and Securing Requirements

    Labelmaster Services petitioned PHMSA to amend Sec.  175.30(c)(1)

by removing language prohibiting any package, outside container, or

overpack

containing hazardous materials from being transported on an aircraft if

it has holes. See P-1671.\8\ The petitioner noted that operators and

freight forwarders have declined to transport packages with minor

abrasions, tears, dents, cuts, small holes, or other minor damage from

normal conditions of transportation and handling. Even where these

examples of minor damage or holes did not compromise the packaging's

integrity, operators and freight forwarders declined to transport them

on the basis of Sec.  175.30(c)(1).

---------------------------------------------------------------------------

    \8\ See https://www.regulations.gov/docket?D=PHMSA-2015-0281.

---------------------------------------------------------------------------

    PHMSA believes the current restriction prohibiting acceptance of

any of these containment methods with holes to be overly prescriptive,

especially as the paramount safety requirement is that there must not

be any indication that the integrity of the containment method has been

compromised. In the NPRM, consistent with the ICAO Technical

Instructions, PHMSA proposed to amend Sec.  175.30(c)(1) to remove

language prohibiting packages or overpacks containing hazardous

materials from being transported on an aircraft simply due to the

presence of holes when the holes do not compromise the integrity of the

containment device.

    PHMSA received comments from A4A, COSTHA, DGAC, and UPS in response

to the proposed revision. The DGAC commented in support of the proposed

revision as it enhances harmonization and does not compromise safety.

UPS commented in support of the proposed revision, noting that the risk

of transporting such packages aboard aircraft would not be elevated,

and was also supportive of the NPRM preamble language, stating

operators are ultimately responsible for the decision to accept such a

package for transportation. In their comments, A4A and COSTHA provided

support for the NPRM preamble language, stating that operators may

continue to have more restrictive standards as a part of their business

practice; however, they expressed concern on how package integrity

determinations are to be made and whether enforcement officials will

accept the aircraft operator's conclusion. COSTHA also commented that

aircraft operators receive ``knowing'' or ``constructive knowledge''

violations for non-compliance with the HMR, further noting that

accidental damage is not a ``knowing'' violation but that an operator

accepting a package with a small hole or abrasion could be considered a

``knowing'' violation as operators are prohibited from transporting

damaged packages aboard aircraft.

    PHMSA expects that the majority of determinations applicable to

small holes on the integrity of a package or overpack will be quite

evident. If an air operator has any doubt on whether the integrity of

the package or overpack has been compromised, and potentially is not

suitable for transportation aboard aircraft, it should not be accepted

for transport in its present condition. Further, a package or overpack

containing only superficial damage not affecting the integrity, and not

prohibited by Sec.  175.30(c)(1), would not be considered a damaged

package or overpack.

    As stated in the NPRM, PHMSA believes the current restriction

prohibiting acceptance of any package or overpack with holes to be

overly prescriptive, especially as the paramount safety requirement is

that there must not be any indication that the integrity of the

containment method has been compromised. Therefore, this final rule

adopts the revision to Sec.  175.30 as proposed in the December 5, 2016

NPRM with minor editorial clarifications. In reviewing the section

during development of the final rule, PHMSA determined that the term

``outside container'' is not applicable. As per the definition of

``strong outer packaging'' in Sec.  171.8, it is synonymous with

``strong outer container''. Therefore ``outside container'' has the

same meaning as outer packaging. Outer packaging is a component of a

package, which is already listed. As a result, in this final rule PHMSA

is removing ``outside container'' from paragraphs (b) and (c). In

addition, in the NPRM, PHMSA proposed to include ``freight container''

and ``unit load device'' in the list of containment devices contained

in paragraph (c). The intent was to align with the provisions in ICAO

Technical Instructions, but further review found that there is no such

provision in the ICAO Technical Instructions. In Part 7;1.3.1 i) of the

ICAO Technical Instructions there is a requirement to verify freight

containers and unit load devices are not leaking and there is no

indication that the integrity has been compromised; however, this is

under the activity of conducting an acceptance checklist which the HMR

do not require. As a result, in this final rule, we are not listing

``freight containers'' or ``unit load devices'' in paragraph (c).

    Section 175.88 prescribes requirements for inspection, orientation,

and securing packages of hazardous materials aboard aircraft. In the

NPRM, PHMSA proposed revisions to Sec.  175.88(c) to require hazardous

materials loaded in an aircraft to be protected from damage, including

by the movement of baggage, mail, stores, or other cargo, and further

harmonize specific portions of the general loading/securement

requirements pertaining to appropriate securing and loading practices

of the HMR with those found in the ICAO Technical Instructions.

Specifically, PHMSA proposed to revise Sec.  175.88(c) by separating

the provisions of the existing paragraph (c) into new subparagraphs (1)

and (4), and adding subparagraphs (2) and (3) to align with part

7;2.4.3 of the ICAO Technical Instructions that reads as follows:

    When dangerous goods subject to the provisions herein are loaded

in an aircraft, the operator must protect the packages of dangerous

goods from being damaged, including by the movement of baggage,

mail, stores or other cargo. Particular attention must be paid to

the handling of packages during their preparation for transport, the

type of aircraft on which they are to be carried and the method

required to load that aircraft, so that accidental damage is not

caused through dragging or mishandling of the packages.

    PHMSA received three comments from A4A, COSTHA, and UPS in response

to the proposed revisions. The commenters stated that the manner in

which the proposed paragraphs are structured may have the unintended

effect of applying to activities outside of the aircraft loading

process, resulting in subjective conditions that could lead to

inappropriate enforcement. COSTHA commented that the proposed

requirements ``could be interpreted to prohibit industry standard

processing and movement of packages and baggage at sorting facilities

or conveyor belt operations used to move packages.'' A4A and UPS

commented on the use of ``dragging'' in proposed paragraph (c)(3). A4A

asserted that normal cargo handling practices could be ``construed by

an inspector'' as ``dragging'' or inadequate protection resulting in a

violation and that ``such practices include loading of unit load

devices and the holds of narrow-body, non-containerized aircraft by

leveraging smooth floor surfaces to slide packages into place.'' UPS

commented that the established industry practice of sliding of packages

on surfaces (e.g., tables, conveyor belts, floors and other surfaces)

may be subject to proposed language in Sec.  175.88(c)(3), noting that

the term ``dragging'' would introduce a basis for enforcement personnel

to misinterpret industry package handling methods. UPS further

commented that there are aircraft holds, such as those with low

ceilings, in which the positioning of or removal of packages

necessitates the sliding or dragging of such packages.

    In addition, the commenters suggested that the proposed text is

unnecessary because other requirements in the HMR, such as those in

Sec. Sec.  175.30 and 175.90(c), already prevent the loading of damaged

packages containing hazardous materials aboard aircraft.

    The intent of the revisions to Sec.  175.88(c) is to ensure that

hazardous materials are not loaded in an inappropriate manner and that

accidental damage is not caused during the loading process. The safety

gap addressed in this final rule covers the movement of hazardous

materials during the aircraft loading process until the cargo is

secured aboard the aircraft. PHMSA acknowledges that certain aircraft

types or configurations necessitate sliding or dragging to position the

cargo aboard the aircraft. An example of this type of aircraft would be

passenger aircraft, which contain smaller ``lower hold'' cargo

configurations. These ``lower hold'' configurations are typically 3-4

feet in height, in which operator personnel must get on their knees due

to the small hold area and items must be maneuvered by pushing,

pulling, and sliding cargo.

    PHMSA has reviewed the existing requirements in Sec.  175.88(c),

and while these requirements ensure that packages are inspected for

damage upon initial acceptance by the operator and forbid placing

aboard an aircraft baggage or cargo that is contaminated with hazardous

material or appears to be leaking, they do not address accidental

damage that may be caused through mishandling of the packages during

the loading process. PHMSA agrees that the paragraph structure could be

misinterpreted to apply to situations outside of the loading process.

Therefore, this final rule revises paragraph (c)(3) consistent with the

language suggested by COSTHA in their comments.

III. Section-by-Section Review

    The following is a section-by-section review of the amendments in

this final rule:

Part 172

Section 172.101

    Section 172.101 contains the Hazardous Materials Table (HMT) and

provides instructions for its use. Section 172.101(h) describes column

(7) of the HMT, which specifies codes for special provisions applicable

to hazardous materials. In this final rule, PHMSA is revising the

column (7) special provisions.

    Specifically, PHMSA is removing: (1) Special provision A3 from all

assigned PG I HMT entries in column (7); and (2) special provision A6

from all assigned liquid HMT entries in column (7). Table 1 illustrates

the HMT entries for which changes are proposed:

                                 Table 1

------------------------------------------------------------------------

           Proper shipping name               UN ID No.     SP deletion

------------------------------------------------------------------------

Acetaldehyde..............................  UN1089         A3

Acetic acid, glacial or Acetic acid         UN2789         A6

 solution, with more than 80 percent acid,

 by mass.

Acetic acid solution, not less than 50      UN2790         A6

 percent but not more than 80 percent

 acid, by mass.

Acetic anhydride..........................  UN1715         A6

Acetyl chloride...........................  UN1717         A6

Alkali metal alloys, liquid, n.o.s........  UN1421         A3

Alkali metal amalgam, liquid..............  UN1389         A3

Alkali metal dispersions, flammable or      UN3482         A3

 Alkaline earth metal dispersions,

 flammable.

Alkali metal dispersions, or Alkaline       UN1391         A3

 earth metal dispersions.

Alkylphenols, liquid, n.o.s. (including C2- UN3145         A6

 C12 homologues) (PG I).

Allyl iodide..............................  UN1723         A6

Amines, liquid, corrosive, flammable,       UN2734         A3, A6

 n.o.s. or Polyamines, liquid, corrosive,

 flammable, n.o.s. (PG I).

Amines, liquid, corrosive, n.o.s., or       UN2735         A3, A6

 Polyamines, liquid, corrosive, n.o.s. (PG

 I).

Amyl mercaptan............................  UN1111         A6

Antimony pentafluoride....................  UN1732         A6

Benzyl chloroformate......................  UN1739         A3, A6

Boron trifluoride diethyl etherate........  UN2604         A3

Butyl mercaptan...........................  UN2347         A6

Chlorite solution.........................  UN1908         A6

2-Chloropropene...........................  UN2456         A3

Chromium oxychloride......................  UN1758         A3, A6

Chromosulfuric acid.......................  UN2240         A3, A6

Corrosive liquid, acidic, inorganic,        UN3264         A6

 n.o.s. (PG I).

Corrosive liquid, acidic, organic, n.o.s.   UN3265         A6

 (PG I).

Corrosive liquid, basic, inorganic, n.o.s.  UN3266         A6

 (PG I).

Corrosive liquid, basic, organic, n.o.s.    UN3267         A6

 (PG I).

Corrosive liquid, self-heating, n.o.s. (PG  UN3301         A6

 I).

Corrosive liquids, flammable, n.o.s. (PG    UN2920         A6

 I).

Corrosive liquids, n.o.s. (PG I)..........  UN1760         A6

Corrosive liquids, oxidizing, n.o.s.......  UN3093         A6

Corrosive liquids, toxic, n.o.s. (PG I)...  UN2922         A6

Corrosive liquids, water-reactive, n.o.s..  UN3094         A6

Dichloroacetic acid.......................  UN1764         A6

Dichloroacetyl chloride...................  UN1765         A6

Difluorophosphoric acid, anhydrous........  UN1768         A6

Disinfectant, liquid, corrosive, n.o.s....  UN1903         A6

Dyes, liquid, corrosive, n.o.s. or Dye      UN2801         A6

 intermediates, liquid, corrosive, n.o.s.

 (PG I).

Ethyl mercaptan...........................  UN2363         A6

Ethyldichlorosilane.......................  UN1183         A3

Fluoroboric acid..........................  UN1775         A6

Fluorophosphoric acid anhydrous...........  UN1776         A6

Fluorosilicic acid........................  UN1778         A6

Fluorosulfonic acid.......................  UN1777         A3, A6

Hexafluorophosphoric acid.................  UN1782         A6

Hydrazine, anhydrous......................  UN2029         A3, A6

Hydriodic acid (PG II)....................  UN1787         A6

Hydrobromic acid, with not more than 49     UN1788         A6

 percent hydrobromic acid (PG II).

Hydrochloric acid (PG II).................  UN1789         A6

Hydrofluoric acid and Sulfuric acid         UN1786         A6

 mixtures.

Hydrofluoric acid, with more than 60        UN1790         A6

 percent strength.

Hydrofluoric acid, with not more than 60    UN1790         A6

 percent strength.

Hydrogen peroxide and peroxyacetic acid     UN3149         A6

 mixtures, stabilized with acids, water,

 and not more than 5 percent peroxyacetic

 acid.

Hydrogen peroxide, aqueous solutions with   UN2014         A6

 not less than 20 percent but not more

 than 40 percent hydrogen peroxide

 (stabilized as necessary).

Lithium aluminum hydride, ethereal........  UN1411         A3

Mercaptans, liquid, flammable, toxic,       UN1228         A6

 n.o.s. or Mercaptan mixtures, liquid,

 flammable, toxic, n.o.s. (PG III).

Mercaptans, liquid, toxic, flammable,       UN3071         A6

 n.o.s. or Mercaptan mixtures, liquid,

 toxic, flammable, n.o.s., flash point not

 less than 23 degrees C.

Methyldichlorosilane......................  UN1242         A3

Morpholine................................  UN2054         A6

Nitric acid other than red fuming, with at  UN2031         A6

 least 65 percent, but not more than 70

 percent nitric acid.

Nitric acid other than red fuming, with     UN2031         A6

 more than 20 percent and less than 65

 percent nitric acid.

Nitric acid other than red fuming, with     UN2031         A6

 not more than 20 percent nitric acid.

Nitric acid other than red fuming, with     UN2031         A3

 more than 70 percent nitric acid.

Nitrohydrochloric acid....................  UN1798         A3

Nitrosylsulfuric acid, liquid.............  UN2308         A6

Organotin compounds, liquid, n.o.s. (PG I)  UN2788         A3

Oxidizing liquid, corrosive, n.o.s. (PG I)  UN3098         A6

Oxidizing liquid, n.o.s. (PG I)...........  UN3139         A6

Oxidizing liquid, toxic, n.o.s. (PG I)....  UN3099         A6

Perchloric acid with more than 50 percent   UN1873         A3

 but not more than 72 percent acid, by

 mass.

Phosphorus tribromide.....................  UN1808         A6

Propanethiols.............................  UN2402         A6

Propylene oxide...........................  UN1280         A3

1,2-Propylenediamine......................  UN2258         A6

Propyleneimine, stabilized................  UN1921         A3

Selenium oxychloride......................  UN2879         A3, A6

Silicon tetrachloride.....................  UN1818         A6

Sulfur chlorides..........................  UN1828         A3

Sulfuric acid, fuming with less than 30     UN1831         A3

 percent free sulfur trioxide.

Trichloroacetic acid, solution............  UN2564         A6

Trifluoroacetic acid......................  UN2699         A3, A6

Valeryl chloride..........................  UN2502         A6

Vanadium oxytrichloride...................  UN2443         A6

Vanadium tetrachloride....................  UN2444         A3, A6

Vinyl ethyl ether, stabilized.............  UN1302         A3

Xylyl bromide, liquid.....................  UN1701         A6

------------------------------------------------------------------------

Section 172.102 Special Provisions

    Section 172.102 lists special provisions applicable to the

transportation of specific hazardous materials. Special provisions

contain packaging requirements, prohibitions, and exceptions applicable

to particular quantities or forms of hazardous materials. PHMSA is

replacing the existing requirement for tightly closed metal receptacles

in special provision A3 from Sec.  172.102(b)(2), which applies only to

transportation by aircraft, with a requirement for rigid and leakproof

receptacles or intermediate packaging packed with absorbent material.

Part 175

Section 175.10

    Section 175.10 provides exceptions for passengers, crewmembers, and

air operators. PHMSA is revising Sec.  175.10(a)(18)(i) to authorize

passengers and crewmembers to carry on board aircraft portable medical

electronic devices containing lithium metal batteries with a lithium

content exceeding 2 grams per battery, but not exceeding 8 grams of

lithium content per battery, and no more than two individually

protected lithium metal spare batteries for these portable medical

electronic devices each exceeding 2 grams of lithium content, but not

exceeding 8 grams of lithium content, with the approval of the

operator. Consistent with the ICAO Technical Instructions and the

current HMR prohibitions, spare lithium batteries (i.e., batteries that

are not packed with or contained in equipment) of any type and for any

application continue to be prohibited from checked baggage. FAA's

Safety Alert to Operators (SAFO) 15010 Carriage of Spare Lithium

Batteries in Carry-on and Checked Baggage \9\ provides additional

guidance to operators on this issue.

---------------------------------------------------------------------------

    \9\ (SAFO) 15010 Carriage of Spare Lithium Batteries in Carry-on

and Checked Baggage.

---------------------------------------------------------------------------

Section 175.30

    Section 175.30 prescribes requirements for the inspection and

acceptance of hazardous materials.

PHMSA is revising Sec.  175.30(c)(1) to no longer prohibit packages or

overpacks containing hazardous materials from being transported on an

aircraft if there are one or more holes present when the hole(s) or

other indications do not indicate compromised integrity to the package

or overpack.

Section 175.33

    Section 175.33 establishes requirements for shipping papers and the

information to the pilot-in-command when hazardous materials are

transported by aircraft. PHMSA is making revisions to harmonize the

information to the pilot-in-command requirements in the HMR with those

found in the ICAO Technical Instructions. Specifically, we are making

revisions to:

     Align the elements that are required to be provided in the

information to the pilot-in-command;

     Clarify that information to the pilot-in-command may be in

an electronic form;

     Ensure the information to the pilot-in-command is provided

to flight dispatchers or, when flight dispatchers are not utilized,

other ground support personnel with operational control of the

aircraft;

     Harmonize with ICAO requirements addressing when the

information must be provided to the pilot-in-command and flight

dispatchers;

     Require confirmation via signature or other appropriate

indication by the pilot-in-command to indicate that the required

information was received;

     Clarify that UN3480, UN3481, UN3090, and UN3091 prepared

in accordance with Sec.  173.185(c), except Sec.  173.185(c)(4)(vi),

are not required to appear on the information to the pilot-in-command;

and

     Require that the information provided to the pilot-in-

command contain confirmation via signature or other appropriate

indication by the person responsible for loading the aircraft that no

damaged or leaking packages or packages showing evidence of damage or

leakage have been loaded on the aircraft.

    Consistent with the ICAO Technical Instructions, we are also

amending Sec.  175.33 by removing the requirement to include additional

informational requirements in Sec.  175.33(a)(1)(i) and (ii). This

information will continue to be required on shipping papers.

    PHMSA has restructured Sec.  175.33 to separate the requirements

for the information to the pilot-in-command from those for shipping

papers to address comments to the NPRM from UPS stating that the

proposed text is confusing and suggesting revisions to improve clarity.

Section 175.88

    Section 175.88 prescribes requirements for inspection, orientation,

and securing packages of hazardous materials aboard aircraft. PHMSA is

amending Sec.  175.88(c) by separating the provisions of the existing

paragraph (c) into new subparagraphs (1) and (4), and adding

subparagraphs (2) and (3) to align with part 7;2.4.3 of the ICAO

Technical Instructions. Specifically, these new paragraphs will require

that hazardous materials be: (1) Secured in an aircraft in a manner

that will prevent any change in the orientation of the packages; (2)

protected from damage, including by the movement of baggage, mail,

stores, or other cargo; (3) loaded so that accidental damage is not

caused through dragging or mishandling; and (4) Class 7 (radioactive)

materials be secured in a manner that ensures that the separation

requirements of Sec. Sec.  175.701 and 175.702 will be maintained at

all times during flight.

IV. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the statutory authority of the

Federal hazardous materials transportation law (Federal hazmat law). 49

U.S.C. 5101 et seq. Section 5103(b) of the 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. Section 5120(b) of the

Federal hazmat law authorizes the Secretary of Transportation to ensure

that, to the extent practicable, regulations governing the

transportation of hazardous materials in commerce are consistent with

standards adopted by international authorities. The Secretary has

delegated these authorizations to the Administrator for PHMSA. See 49

CFR 1.97.

    This final rule amends regulations to increase alignment with

international standards by incorporating various amendments, including

changes to special provisions, packaging requirements, air transport

information to the pilot-in-command requirements, and allowances for

hazardous materials to be carried on board an aircraft by passengers

and crewmembers. To this end, this final rule amends regulations to

more fully align the HMR with the ICAO Technical Instructions. The

large volume of hazardous materials transported in international

commerce warrants the harmonization of domestic and international

requirements to the greatest extent possible.

    Harmonization serves to facilitate international commerce, while

also promoting the safety of people, property, and the environment by

reducing the potential for confusion and misunderstanding that could

result if shippers and operators were required to comply with two or

more conflicting sets of regulatory requirements. PHMSA's goal is to

harmonize without sacrificing the current HMR level of safety or

imposing undue burdens on the regulated community. We consulted the FAA

in the development of this rule.

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 12866, ``Regulatory Planning and

Review,'' 58 FR 51735 (Oct. 4, 1993) and, therefore, was not reviewed

by the Office of Management and Budget. Accordingly, this final rule is

not considered a significant rule under the Regulatory Policies and

Procedures of the Department of Transportation. 44 FR 11034 (Feb. 26,

1979).

Benefits of the Rule

    PHMSA analyzed the expected benefits of these provisions in this

final rule. Typically, the benefits of rules are derived from (1)

enhanced health and safety factors and (2) reduced expenditures, such

as private-sector savings, government administrative savings, gains in

work time, harmonization impacts, and costs of compliance. In the case

of this final rule, most of the benefits will be derived from health

and safety factors, as well as reduced compliance costs.

    The health and safety benefits specifically attributable to

modifications of the information to the pilot-in-command requirements

are not easily calculable with any degree of accuracy. The requirements

for pilot-in-command's signature and confirmation from the person

responsible for loading the aircraft will result in more effective and

efficient response in the event of an aviation incident. The

requirement that packages be protected from damage during loading

operations will result in increased safety and environmental

protection. Benefits will also be realized through a more efficient

response time because of emergency response personnel having quicker

access to hazardous materials information for each flight.

Cost Reducing Aspects of Harmonization

    The primary cost savings expected from this final rule result from

reduced packaging costs in relation to the removal of special provision

A3 from all assigned PG I HMT entries and special provision A6 from all

assigned liquid HMT entries. Additionally, while they have not been

quantified, PHMSA expects cost savings from the final rule's general

harmonization of information to the pilot-in-command requirements and

support for the use of electronic formats.

    Currently, compliance with special provisions A3 and A6 requires

domestic shippers to use extra \10\ or more expensive \11\ materials.

Shippers also incur higher freight charges for shipping packages with

higher package weights.\12\ PHMSA estimates that the partial removal of

A3 and complete removal of A6 for liquids, as well as that of the

associated intermediate packaging requirements, will provide

undiscounted annual cost savings of $1,814,643 in reduced packaging

costs to shippers.

---------------------------------------------------------------------------

    \10\ A metal container enclosing either a plastic or glass

container.

    \11\ A metal or glass container rather than a plastic container.

    \12\ Having a metal container enclosing a plastic/glass

container will add weight. Likewise, using a metal or glass

container rather than a plastic container will add weight.

---------------------------------------------------------------------------

    To arrive at these cost savings, PHMSA (1) analyzed commodity flow

survey data for commodities assigned A3, A6, or both in the HMR; (2)

determined an estimate of total tons of freight for affected

commodities offered for transportation by aircraft annually; (3) used

this general commodity flow survey data to estimate the number of

impacted packages; and (4) determined a cost basis for packages

prepared under existing requirements versus requirements in this final

rule.

    A summary of the cost savings calculation method is as follows.

PHMSA estimated the cost savings by comparing the difference in costs

between the pre- and post-final rule options for each shipping scenario

identified for commodities potentially subject to A3 or A6. For the

purposes of this analysis, we assumed that relatively inexpensive

metal, plastic, and glass packaging could be used for inner and

intermediate receptacles. There are no costs specifically attributable

to the A3 compliance requirements because the least cost option for

shipping is to use metal or plastic containers, and A3 applies to

shipments in glass containers. While some commodities are shipped in

glass containers due to various factors (e.g. ensuring product

composition is maintained, customer demand, or specific retail

requirements), the analysis assumed that shippers always choose the

least cost option. We were unable to quantify the number of A3

shipments that are currently voluntarily offered in glass inner

packagings. The potential cost savings per package are due to increased

flexibility posed by the use of any rigid intermediate packaging

instead of the single metal type currently required.

    PHMSA estimated the compliance costs attributable to A6 compliance

requirements, which vary by type of shipment and packaging type. For

example, the difference in the compliance cost for a one-gallon

shipment using UN specification packaging for materials corrosive to

metal is estimated at $3.82 for Packing Groups I, II or III. The

estimated number of tons subject to A6 for UN specification packaging

(corrosive to metal and PG I) is 641. The number of packages affected

depends on the average inner receptacle volumes applicable to each

packing group and restriction type. These calculations assume that the

density of the chemicals is the same as that of water (i.e., one ton of

each affected commodity has a volume of 239.65 gallons). Therefore, if

the number of gallons per package for a commodity corrosive to metal

and PG I is 0.66, the estimated number of packages per ton for that

commodity is 363 (239.65/0.66). Thus, the total number of packages is

232,683 packages = 363 packages/ton multiplied by 641 tons. The total

annual shipping cost difference is estimated at $889,434 by multiplying

the cost difference per package noted above of $3.82 by the number of

affected packages, 232,836. Similarly, PHMSA estimates the annual

shipping cost difference for UN specification packaging for PG I

materials not corrosive to metal at $159,150 and the total annual

shipping cost difference for PG II materials corrosive and not

corrosive to metal at $766,059. Therefore, the annual shipping cost

difference for all PGs is estimated at $1,814,643 ($889,434 + $159,150

+ $766,059).

    The reduced expenditure cost savings associated with the general

harmonization of the information to the pilot-in-command requirements

are not easily calculable. Inconsistent hazardous materials regulations

result in additional compliance costs for industry and increase

compliance training efforts, whereas consistency of regulations reduces

regulatory compliance costs and helps to avoid rejected or frustrated

shipments. Clarifying that the term ``written'' in the information to

the pilot-in-command applies to handwritten, printed, or electronic

formats supports the use of electronic methods as air operators

continue to move away from paper documents and towards electronic

systems. Cost savings may be realized by utilizing existing messaging

systems for direct upload of information to and retrieval from, the

cockpit. In addition, there may be cost savings for operators electing

to use electronic information methods as they will not have to

physically print the information for use and retention purposes. PHMSA

expects the increased harmonization of the HMR and ICAO Technical

Instructions to generate cost savings by streamlining the processes for

information to the pilot-in-command generation.

Costs of Harmonization

    The primary costs associated with this final rule are time costs

related to requirements for (1) confirmation via signature or other

appropriate indication by the person responsible for loading the

aircraft that no damaged or leaking packages were loaded on the

aircraft, and (2) confirmation via signature or other appropriate

indication by the pilot-in-command to indicate that the required

information was received. PHMSA estimates the annual costs associated

with harmonizing the HMR information to the pilot-in-command

requirements with those found in the ICAO Technical Instructions to be

$795,318. This estimate is the total annual costs in 2016 dollars of

the additional costs for pilot ($465,966) and loader ($106,845)

acknowledgements plus HMR training costs ($222,507).

    A summary of the annual cost calculation is as follows. PHMSA

estimates there are between 1,056 and 9,920 projected flights \13\

daily carrying hazmat that would be subject to harmonized HMR and ICAO

information to the pilot-in-command requirements with a mean daily

value of 5,415 (1,976,475 annual). The estimated pilot acknowledgement

cost of $0.24\14\ (based on average pilot salary and five seconds per

action) per information received by the pilot-in-command multiplied by

the estimated annual number of associated flights results in a total

cost of $465,966. Person(s) responsible for loading the aircraft costs

were calculated in the same manner as pilots but with an estimated

acknowledgement cost of $0.05 \15\ per information to the pilot-in-

command resulting in an estimated cost of $106,845. Based on FAA air

operator data, the number of additional employees requiring training is

estimated at 2,086 at an estimated training cost of $107 per trainee

per year. The estimated annual expected industry training costs in 2016

dollars would then be $222,507 = 2,086 employees multiplied by $107 per

employee. PHMSA notes that many air operators already comply with

ICAO's information to the pilot-in-command requirements; therefore, it

is likely that this analysis has overestimated the cost of

harmonization. The HMR currently require confirmation that no damaged

or leaking packages have been loaded on the aircraft. In satisfying

this current requirement, it is assumed that many operators are already

using the specific confirmation requirement (signature or other

indication) from the person responsible for loading the aircraft, which

would already be accounted for in time costs.

---------------------------------------------------------------------------

    \13\ PHMSA consulted with the FAA to derive the number of

affected flights subject to this requirement.

    \14\ Bureau of Labor Statistics Occupational Employment and

Wages, May 2016: 53-2011 Airline Pilots, Copilots, and Flight

Engineers,

    \15\ Occupational Employment and Wages, May 2016: 53-1011

Aircraft Cargo Handling Supervisors.

---------------------------------------------------------------------------

    Under current practice, the information is transmitted to the

pilot-in-command. We assume the additional provision of identical

information to the flight dispatcher (or other personnel) will incur

negligible costs, if any, especially as we understand this to be a

common industry practice. In the NPRM, PHMSA invited comments on this

assumption and on any unanticipated costs associated with the proposed

requirement. While PHMSA did not receive any specific comments on

additional costs associated with providing the same information to the

flight dispatcher, all of the commenters provided strong support for

harmonizing with the information to the pilot-in-command provisions of

the ICAO Technical Instructions.

Net Cost Savings

    Based on the previous discussions of benefits, costs, and cost

savings PHMSA estimates the net annual cost savings associated with

this final rule (2137-AF10) to be $1,019,325.

C. Executive Order 13771

    Executive Order 13771 (``Reducing Regulation and Controlling

Regulatory Costs''), issued January 30, 2017, provides that ``it is

essential to manage the costs associated with the governmental

imposition of private expenditures required to comply with Federal

regulations.'' Toward that end, E.O. 13771 directs agencies to (1)

identify two potential deregulatory actions for each new E.O. 13771

regulatory action, and (2) limit the incremental costs of new

regulations overall on a fiscal year basis. This final rule is

considered an E.O. 13771 deregulatory action. Details on the estimated

cost savings of this final rule are described above.

D. Executive Order 13132

    This final rule has been analyzed in accordance with the principles

and criteria contained in Executive Order 13132, ``Federalism,'' 64 FR

43255 (Aug. 10, 1999). The regulatory changes in this final rule

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, 49 U.S.C. 5101-

5128, contains an express preemption provision, 49 U.S.C. 5125(b), that

preempts State, local, and Indian tribe requirements on certain covered

subjects, as follows:

    (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, reconditioning, 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 (2), (3), and (5)

above and preempts State, local, and Indian tribe requirements not

meeting the ``substantively the same'' standard. This final rule is

necessary to harmonize with international standards. If the changes are

not adopted into the HMR, U.S. companies--including numerous small

entities competing in foreign markets--would be at an economic

disadvantage because of their need to comply with a dual system of

regulations. The changes in this rulemaking are intended to avoid this

result. Federal hazardous materials transportation law provides that,

if DOT issues a regulation concerning any of the covered subjects, DOT

must determine and publish in the Federal Register the effective date

of Federal preemption. 49 U.S.C. 5125(b)(2). The effective date may not

be earlier than the 90th day following the date of issuance of the

final rule and not later than two years after the date of issuance.

PHMSA is setting the effective date of Federal preemption to be 90 days

from publication of a final rule in this matter.

E. Executive Order 13175

    This final rule was analyzed in accordance with the principles and

criteria contained in Executive Order 13175, ``Consultation and

Coordination with Indian Tribal Governments,'' 65 FR 67249 (Nov. 9,

2000). Because this final rule does not have tribal implications, does

not impose substantial direct compliance costs, and is required by

statute, the funding and consultation requirements of Executive Order

13175 do not apply.

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

and Procedures

    This final rule was developed in accordance with Executive Order

13272, ``Proper Consideration of Small Entities in Agency Rulemaking,''

67 FR 53461 (Aug. 16, 2002) and DOT's Policies and Procedures to

promote compliance with the Regulatory Flexibility Act, 5 U.S.C. 601 et

seq., and ensure that potential impacts of draft rules on small

entities are properly considered. The Regulatory Flexibility Act

requires an agency to review regulations to assess their economic

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.

    This final rule facilitates the transportation of hazardous

materials in international commerce by increasing consistency with

international standards. It applies to offerors and carriers of

hazardous materials, some of whom are small entities, such as chemical

manufacturers, users and suppliers, packaging manufacturers,

distributors, aircraft operators, and training companies. As previously

discussed in Section IV, Subsection B (Executive Order 12866, Executive

Order 13563, and DOT Regulatory Policies and Procedures), PHMSA expects

that the majority of amendments in this final rule will result in cost

savings and ease the regulatory compliance burden for shippers engaged

in domestic and international

commerce, including trans-border shipments within North America. Many

companies will realize economic benefits as a result of these

amendments. Additionally, the changes effected by this final 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, we certify that these amendments will not have

a significant economic impact on a substantial number of small

entities.

G. Paperwork Reduction Act

    PHMSA currently has an approved information collection under Office

of Management and Budget (OMB) Control Number 2137-0034, ``Hazardous

Materials Shipping Papers and Emergency Response Information.'' We

anticipate that this final rule will result in an increase in the

annual burden of this information collection because of an increase in

the amount of time needed to complete the information to the pilot-in-

command due to additional requirements for (1) confirmation via

signature or other appropriate indication by the person responsible for

loading the aircraft that no damaged or leaking packages were loaded on

the aircraft, and (2) confirmation via signature or other appropriate

indication by the pilot-in-command that the required information was

received. PHMSA did not receive any comments on the changes to this

information collection burden in response to the NPRM.

    This rulemaking identifies a revised information collection that

PHMSA will submit to OMB for approval based on the requirements in this

final rule. PHMSA has developed burden estimates to reflect changes and

estimates that the information collection and recordkeeping burden in

this rule are as follows:

    OMB Control Number: 2137-0034.

    Annual Increase in Number of Respondents: 150.

    Annual Increase in Annual Number of Responses: 1,976,475.

    Annual Increase in Annual Burden Hours: 5,474.

    Annual Increase in Annual Burden Costs: $572,811.

    PHMSA will submit the revised information collection and

recordkeeping requirements to OMB for approval.

H. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory

action listed in the Unified Agenda of Federal Regulations. The

Regulatory Information Service Center publishes the Unified Agenda in

the Spring and Fall of each year. The RIN contained in the heading of

this document can be used to cross-reference this action with the

Unified Agenda.

I. Unfunded Mandates Reform Act

    This final rule does not impose unfunded mandates under the

Unfunded Mandates Reform Act of 1995. It does not result in costs of

$141.3 million or more, adjusted for inflation, to either State, local,

or tribal governments, in the aggregate, or to the private sector in

any one year, and is the least burdensome alternative that achieves the

objective of the rule.

J. Environmental Assessment

    The National Environmental Policy Act of 1969, 42 U.S.C. 4321-4375,

requires that Federal agencies analyze proposed actions to determine

whether the action will have a significant impact on the human

environment. The Council on Environmental Quality requires agencies to

conduct an environmental review considering (1) the need for the

proposed action, (2) alternatives to the proposed action, (3) probable

environmental impacts of the action and the alternatives, and (4) the

agencies and persons consulted during the consideration process. 40 CFR

1508.9(b).

1. Purpose and Need

    In this final rule, PHMSA is amending the HMR to increase

harmonization with international standards and to address four

petitions for rulemaking submitted by shippers, carriers,

manufacturers, and industry representatives. These revisions are

intended to harmonize with international standards, while also

maintaining or enhancing safety. Specifically, PHMSA, consistent with

P-1487, is harmonizing the HMR with the 2017-2018 ICAO Technical

Instructions' requirements for the information to the pilot-in-command,

for the air operator to provide the information to the pilot-in-command

to the flight dispatcher, and for the air operator to obtain and retain

a confirmation that the information to the pilot-in-command was

received by the pilot-in-command. This final rule addresses three

additional petitions for rulemaking (P-1637, P-1649, and P-1671) to:

(1) More closely harmonize with the ICAO Technical Instructions in

regard to intermediate packaging requirements for certain low and

medium danger hazardous materials; (2) add an exception to allow

passengers to bring on board an aircraft portable medical electronic

devices containing lithium metal batteries that exceed the current

lithium battery limits in Sec.  175.10(a)(18)(i), as well as spare

batteries for these devices with the approval of the operator; and (3)

remove language prohibiting any package or overpack containing

hazardous materials from being transported on an aircraft if it has

holes when there is no indication that the integrity of the package or

overpack has been compromised. All of these amendments more closely

harmonize U.S. regulations with international standards.

    This action is necessary to: (1) Fulfill PHMSA's statutory

directive to promote transportation safety; (2) fulfill PHMSA's

statutory directive under the Administrative Procedure Act (APA) that

requires Federal agencies to give interested persons the right to

petition an agency to issue, amend, or repeal a rule, 5 U.S.C. 553(e);

(3) align the HMR with international transport standards and

requirements to the extent practicable in accordance with Federal

hazmat law, 49 U.S.C. 5120; and (4) simplify and clarify the

regulations in order to promote understanding and compliance.

Specifically, this rulemaking achieves these goals by responding to

petitions (P-1487, P-1637, P-1649, and P-1671).

    With this action, we are more closely align the HMR with

international transport standards and requirements, without diminishing

the level of safety currently provided by the HMR or imposing undue

burdens on the regulated public.

2. Alternatives

    In developing this rulemaking, PHMSA considered the following

alternatives:

    No Action Alternative:

    If PHMSA had selected the No Action Alternative, regulations would

remain in place and no new provisions would be added. However,

efficiencies gained through harmonization in updates to information to

the pilot-in-command requirements; intermediate packaging requirements;

passenger carriage of portable medical electronic devices containing

certain lithium metal batteries; acceptance/transport of packages with

small holes that do not compromise the package integrity; ensuring that

hazardous materials loaded in an aircraft are protected from damage;

etc., would not be realized.

    Preferred Alternative:

    PHMSA selected the Preferred Alternative. The amendments included

in this alternative are more fully addressed in the preamble and

regulatory text sections of this final rule. However, they include the

following:

    (1) Harmonize the HMR and ICAO Technical Instructions information

to the pilot-in-command requirements. In this final rule, PHMSA is more

closely aligning the information to the pilot-in-command requirements

in the HMR to the ICAO Technical Instructions. This includes

information required, when the information must be provided to the

pilot-in-command and flight dispatchers, and requirements for verifying

that the information was received by the pilot-in-command.

    (2) More closely harmonize with the ICAO Technical Instructions in

regard to intermediate packaging requirements for certain low and

medium danger hazardous materials. In this final rule, PHMSA is

removing all references to special provision A6 assigned to liquids in

the Hazardous Materials Table. Additionally, this final rule amends

special provision A3 to authorize additional intermediate packagings.

    (3) Add an exception to allow passengers, with the approval of the

operator, to bring on board an aircraft a portable medical electronic

device that exceeds the lithium battery limits in Sec.

175.10(a)(18)(i). In this final rule, PHMSA is amending Sec.

175.10(a)(18)(i) to increase the quantity limits applicable to the

transportation of portable medical electronic devices containing

lithium metal batteries and spare batteries for these devices carried

on an aircraft. The current HMR limit all lithium metal batteries to a

lithium content of not more than 2 grams per battery regardless of end

use, whereas the ICAO Technical Instructions allow portable medical

electronic devices containing lithium metal batteries with up to 8

grams of lithium (as well as spare batteries for these devices) to be

carried on board an aircraft.

    (4) Amend the package inspection and securing requirements. In this

final rule, PHMSA is amending Sec.  175.30(c)(1) to remove language

prohibiting any package or overpack containing hazardous materials from

being transported on an aircraft if it has holes. Additionally, PHMSA

is revising Sec.  175.88(c) to require hazardous materials loaded in an

aircraft to be protected from damage, including by the movement of

baggage, mail, stores, or other cargo, consistent with general loading

requirements found in the ICAO Technical Instructions.

3. Probable Environmental Impacts of the Alternatives

    No Action Alternative:

    If PHMSA had selected the No Action Alternative, regulations would

remain in place and no new provisions would be added. However,

efficiencies gained through harmonization of transport standards would

not be realized. Foregone efficiencies in the No Action Alternative

include freeing up limited resources to concentrate on air transport

hazard communication issues of potentially much greater environmental

impact.

    Additionally, the Preferred Alternative encompasses enhanced and

clarified regulatory requirements, which would result in increased

compliance and less environmental and safety incidents. Not adopting

the environmental and safety requirements under the No Action

Alternative would result in a lost opportunity for reducing

environmental and safety-related incidents.

    Greenhouse gas emissions would remain the same under the No Action

Alternative.

    Preferred Alternative:

    PHMSA selected the Preferred Alternative. We believe that safety

and environmental risks will be reduced and that protections to human

health and environmental resources will be increased. Consistency

between U.S. and international information to the pilot-in-command

requirements can enhance the safety and environmental protection of

hazardous materials transportation, reduce compliance costs, increase

the flow of hazardous materials from their points of origin to their

points of destination (or diversion airport when required), and improve

the emergency response in the event of a hazardous materials incident

or accident.

    Overall, harmonization will result in more targeted and effective

training and thereby enhanced environmental protection. These

amendments will reduce inconsistent hazardous materials regulations,

which can increase the time and cost of compliance training. For ease

of compliance with appropriate regulations, operators engaged in the

transportation of hazardous materials generally elect to accept and

transport hazardous materials in accordance with the ICAO Technical

Instructions, as appropriate. Increasing consistency between these

international regulations and the HMR allows shippers and carriers to

more efficiently train hazmat employees in their responsible functions.

PHMSA believes that these amendments, which will increase

standardization and consistency of regulations, will result in greater

protection of human health and the environment:

    (1) More closely harmonize the HMR and ICAO Technical Instructions

information to the pilot-in-command requirements. Harmonization of

information to the pilot-in-command requirements will (1) allow

operators to streamline compliance and training programs, (2) result in

emergency response personnel having quicker access to hazmat

information for each flight, (3) remove the requirement to supply data

elements required under shipping paper provisions, and (4) provide

flight dispatchers access to hazmat information and relieve the pilot-

in-command of the responsibility of communicating this information to

Air Traffic Control (ATC) and Aircraft Rescue and Firefighting (ARFF)

personnel.

    Greenhouse gas emissions would remain the same under this

amendment.

    (2) More closely harmonize with the ICAO Technical Instructions in

regard to intermediate packaging requirements for certain low and

medium danger hazardous materials. Deleting the assignment of special

provisions A3 (partial) and A6 (for liquids) more closely harmonizes

the HMR with ICAO's packing instructions and removes a requirement

that, according to the petitioner, is a barrier to trade for U.S.

exports, while still maintaining an appropriate level of safety.

Existing requirements in Sec.  173.27(d) and (e) for inner packagings

to have a secondary means of closure and to be placed in either a rigid

and leakproof receptacle or an intermediate packaging with absorbent

material make special provisions A3 and A6 redundant for PG I

commodities. Additionally, the requirements in Sec.  173.27(d) for

inner packagings to have a secondary means of closure or a leakproof

liner or bag adequately address the hazards that special provision A6

was designed to mitigate for PG II and III liquid materials.

    Greenhouse gas emissions would remain the same under this

amendment.

    (3) Add an exception to allow passengers, with the approval of the

operator, to bring on board an aircraft a portable medical electronic

device that exceeds the lithium metal battery limits in Sec.

175.10(a)(18)(i). Harmonizing with the ICAO Technical Instructions in

this area will assist the traveling public who rely on their portable

medical electronic devices powered by lithium metal batteries. This

revision will be consistent with the FAA Modernization and Reform Act.

    Greenhouse gas emissions would remain the same under this

amendment.

    (4) Amend the package inspection and securing requirements.

Harmonizing with the ICAO Technical Instructions in this area will

address the overly prescriptive requirements for package inspection and

securing, which

currently result in acceptance rejections from operators and freight

forwarders. Further, harmonization will result in more targeted and

effective training and thereby enhanced environmental protection. These

amendments will reduce inconsistent hazardous materials regulations,

which hamper compliance training efforts.

    Greenhouse gas emissions would remain the same under this

amendment.

4. Agencies Consulted

    PHMSA coordinated with the U.S. Federal Aviation Administration,

the Federal Motor Carrier Safety Administration, the Federal Railroad

Administration, and the U.S. Coast Guard, in the development of this

final rule. PHMSA considered the views expressed in comments to the

NPRM submitted by members of the public, State and local governments,

and industry.

5. Conclusion

    The provisions of this final rule build on current regulatory

requirements to enhance the transportation safety and security of

shipments of hazardous materials transported by aircraft, thereby

reducing the risks of an accidental or intentional release of hazardous

materials and consequent environmental damage. PHMSA concludes that the

net environmental impact will be positive and that there are no

significant environmental impacts associated with this final rule.

K. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the

public to better inform its rulemaking process. DOT posts these

comments, without edit, including any personal information the

commenter provides, to www.regulations.gov, as described in the system

of records notice (DOT/ALL-14 FDMS), which can be reviewed at

www.dot.gov/privacy.

L. Executive Order 13609 and International Trade Analysis

    Under Executive Order 13609, ``Promoting International Regulatory

Cooperation,'' 77 FR 26413 (May 4, 2012), agencies must consider

whether the impacts associated with significant variations between

domestic and international regulatory approaches are unnecessary or may

impair the ability of American business to export and compete

internationally. In meeting shared challenges involving health, safety,

labor, security, environmental, and other issues, international

regulatory cooperation can identify approaches that are at least as

protective as those that are or would be adopted in the absence of such

cooperation. International regulatory cooperation can also reduce,

eliminate, or prevent unnecessary differences in regulatory

requirements.

    Similarly, the Trade Agreements Act of 1979, Public Law 96-39, as

amended by the Uruguay Round Agreements Act, Public Law 103-465,

prohibits Federal agencies from establishing any standards or engaging

in related activities that create unnecessary obstacles to the foreign

commerce of the United States. For purposes of these requirements,

Federal agencies may participate in the establishment of international

standards, so long as the standards have a legitimate domestic

objective, such as providing for safety, and do not operate to exclude

imports that meet this objective. The statute also requires

consideration of international standards and, where appropriate, that

they be the basis for U.S. standards.

    PHMSA and the FAA participate in the establishment of international

standards to protect the safety of the American public. We have

assessed the effects of this final rule to ensure that it does not

cause unnecessary obstacles to foreign trade. In fact, the final rule

is designed to facilitate international trade by eliminating

differences between the domestic and international air transportation

requirements. Accordingly, this rulemaking is consistent with Executive

Order 13609 and PHMSA's obligations under the Trade Agreement Act, as

amended.

M. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act of 1995, 15

U.S.C. 272 note, directs Federal agencies to use voluntary consensus

standards in their regulatory activities unless doing so would be

inconsistent with applicable law or otherwise impractical. Voluntary

consensus standards are technical standards (e.g., specification of

materials, test methods, or performance requirements) that are

developed or adopted by voluntary consensus standard bodies. This final

rule does not involve voluntary consensus standards.

List of Subjects

49 CFR Part 172

    Education, Hazardous materials transportation, Hazardous waste,

Incorporation by reference, Labeling, Markings, Packaging and

containers, Reporting and recordkeeping requirements.

49 CFR Part 175

    Hazardous materials transportation, Incorporation by reference,

Operators, Reporting and recordkeeping requirements.

    In consideration of the foregoing, PHMSA is amending 49 CFR chapter

I as follows:

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS

MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, TRAINING

REQUIREMENTS, AND SECURITY PLANS

0

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

    Authority:  49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and

1.97.

0

2. In Sec.  172.101, the Hazardous Materials Table is amended by

revising the following entries in the appropriate alphabetical

sequence:

Sec.  172.101   Purpose and use of the hazardous materials table.

* * * * *

BILLING CODE 4910-60-P

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                                (8)                                       (9)                            (10)

                    Hazardous                                                                                -----------------------------------------------------------------------------------------------------------------

                    materials        Hazard                                                                                Packaging (Sec.   173.***)              Quantity limitations (see Sec.         Vessel stowage

   Symbols      descriptions and    class or     Identification          PG          Label codes    Special provisions ---------------------------------------------------    Sec.   173.27 and 175.75)    -----------------------------

                 proper shipping    division          No.                                            (Sec.   172.102)                                                     ---------------------------------

                      names                                                                                Exceptions        Non-bulk           Bulk          Passenger       Cargo air-      Location         Other

                                                                                aircraft/rail     craft only

(1)            (2)...............         (3)  (4)..............  (5)............  (6)............  (7)...............  (8A)...........  (8B)...........  (8C)...........  (9A)...........  (9B)..........  (10A).......  (10B)

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                                * * * * * * *

               Acetaldehyde......           3  UN1089...........  I..............  3..............  B16, T11, TP2, TP7  None...........  201............  243............  Forbidden......  30 L..........  E...........

                                                                                * * * * * * *

               Acetic acid,                 8  UN2789...........  II.............  8, 3...........  A3, A7, A10, B2,    154............  202............  243............  1 L............  30 L..........  A...........

                glacial or Acetic                                                                    IB2, T7, TP2.

                acid solution,

                with more than 80

                percent acid, by

                mass.

               Acetic acid                  8  UN2790...........  II.............  8..............  148, A3, A7, A10,   154............  202............  242............  1 L............  30 L..........  A...........

                solution, not                                                                        B2, IB2, T7, TP2.

                less than 50

                percent but not

                more than 80

                percent acid, by

                mass.

                                                                                * * * * * * *

               Acetic anhydride..           8  UN1715...........  II.............  8, 3...........  A3, A7, A10, B2,    154............  202............  243............  1 L............  30 L..........  A...........  40

                                                                                IB2, T7, TP2.

                                                                                * * * * * * *

               Acetyl chloride...           3  UN1717...........  II.............  3, 8...........  A3, A7, IB1, N34,   150............  202............  243............  1 L............  5 L...........  B...........  40

                                                                                T8, TP2.

                                                                                * * * * * * *

               Alkali metal               4.3  UN1421...........  I..............  4.3............  A2, A7, B48, N34,   None...........  201............  244............  Forbidden......  1 L...........  D...........  13, 52, 148

                alloys, liquid,                                                                      W31.

                n.o.s.

               Alkali metal               4.3  UN1389...........  I..............  4.3............  A2, A7, N34, W31..  None...........  201............  244............  Forbidden......  1 L...........  D...........  13, 40, 52,

                amalgam, liquid.                                                                                148

                                                                                * * * * * * *

               Alkali metal               4.3  UN3482...........  I..............  4.3, 3.........  A2, A7, W31.......  None...........  201............  244............  Forbidden......  1 L...........  D...........  13, 52, 148

                dispersions,

                flammable or

                Alkaline earth

                metal

                dispersions,

                flammable.

               Alkali metal               4.3  UN1391...........  I..............  4.3............  A2, A7, W31.......  None...........  201............  244............  Forbidden......  1 L...........  D...........  13, 52, 148

                dispersions, or

                Alkaline earth

                metal dispersions.

                                                                                * * * * * * *

               Alkylphenols,                8  UN3145...........  I..............  8..............  T14, TP2..........  None...........  201............  243............  0.5 L..........  2.5 L.........  B...........

                liquid, n.o.s.

                (including C2-C12

                homologues).

                                                                  II.............  8..............  IB2, T11, TP2,      154............  202............  242............  1 L............  30 L..........  B...........

                                                                                TP27.

                                                                  III............  8..............  IB3, T7, TP1, TP28  154............  203............  241............  5 L............  60 L..........  A...........

                                                                                * * * * * * *

               Allyl iodide......           3  UN1723...........  II.............  3, 8...........  A3, IB1, N34, T7,   150............  202............  243............  1 L............  5 L...........  B...........  40

                                                                                TP2, TP13.

                                                                                * * * * * * *

G............  Amine, liquid,               8  UN2734...........  I..............  8, 3...........  N34, T14, TP2,      None...........  201............  243............  0.5 L..........  2.5 L.........  A...........  52

                corrosive,                                                                           TP27.

                flammable, n.o.s.

                or Polyamines,

                liquid,

                corrosive,

                flammable, n.o.s.

                                                                  II.............  8, 3...........  IB2, T11, TP2,      None...........  202............  243............  1 L............  30 L..........  A...........  52

                                                                                TP27.

G............  Amines, liquid,              8  UN2735...........  I..............  8..............  B10, N34, T14,      None...........  201............  243............  0.5 L..........  2.5 L.........  A...........  52

                corrosive, n.o.s.                                                                    TP2, TP27.

                or Polyamines,

                liquid,

                corrosive, n.o.s.

                                                                  II.............  8..............  B2, IB2, T11, TP1,  154............  202............  242............  1 L............  30 L..........  A...........  52

                                                                                TP27.

                                                                  III............  8..............  IB3, T7, TP1, TP28  154............  203............  241............  5 L............  60 L..........  A...........  52

                                                                                * * * * * * *

               Amyl mercaptan....           3  UN1111...........  II.............  3..............  A3, IB2, T4, TP1..  None...........  202............  242............  5 L............  60 L..........  B...........  95, 102

                                                                                * * * * * * *

               Antimony                     8  UN1732...........  II.............  8, 6.1.........  A3, A7, A10, IB2,   None...........  202............  243............  Forbidden......  30 L..........  D...........  40, 44, 89,

                pentafluoride.                                                                       N3, N36, T7, TP2.                                                                                100, 141

                                                                                * * * * * * *

               Benzyl                       8  UN1739...........  I..............  8..............  B4, N41, T10, TP2,  None...........  201............  243............  Forbidden......  2.5 L.........  D...........  40

                chloroformate.                                                                       TP13.

                                                                                * * * * * * *

               Boron trifluoride            8  UN2604...........  I..............  8, 3...........  A19, T10, TP2, W31  None...........  201............  243............  0.5 L..........  2.5 L.........  D...........  40

                diethyl etherate.

                                                                                * * * * * * *

               Butyl mercaptan...           3  UN2347...........  II.............  3..............  A3, IB2, T4, TP1..  150............  202............  242............  5 L............  60 L..........  D...........  52, 95, 102

                                                                                * * * * * * *

               Chlorite solution.           8  UN1908...........  II.............  8..............  A3, A7, B2, IB2,    154............  202............  242............  1 L............  30 L..........  B...........  26, 44, 89,

                                                                                N34, T7, TP2,                                                                                100, 141

                                                                                TP24.

                                                                  III............  8..............  A3, A7, B2, IB3,    154............  203............  241............  5 L............  60 L..........  B...........  26, 44, 89,

                                                                                N34, T4, TP2,                                                                                100, 141

                                                                                TP24.

                                                                                * * * * * * *

               2-Chloropropene...           3  UN2456...........  I..............  3..............  N36, T11, TP2.....  150............  201............  243............  1 L............  30 L..........  E...........

                                                                                * * * * * * *

               Chromium                     8  UN1758...........  I..............  8..............  A7, B10, N34, T10,  None...........  201............  243............  0.5 L..........  2.5 L.........  C...........  40, 66, 74,

                oxychloride.                                                                         TP2.                                                                                89, 90

                                                                                * * * * * * *

               Chromosulfuric               8  UN2240...........  I..............  8..............  A7, B4, B6, N34,    None...........  201............  243............  0.5L...........  2.5L..........  B...........  40, 66, 74,

                acid.                                                                                T10, TP2, TP13.                                                                                89, 90

                                                                                * * * * * * *

G............  Corrosive liquid,            8  UN3264...........  I..............  8..............  B10, T14, TP2,      None...........  201............  243............  0.5 L..........  2.5 L.........  B...........  40

                acidic,                                                                              TP27.

                inorganic, n.o.s.

                                                                  II.............  8..............  386, B2, IB2, T11,  154............  202............  242............  1 L............  30 L..........  B...........  40

                                                                                TP2, TP27.

                                               .................  III............  8..............  IB3, T7, TP1, TP28  154............  203............  241............  5 L............  60 L..........  A...........  40

G............  Corrosive liquid,            8  UN3265...........  I..............  8..............  B10, T14, TP2,      None...........  201............  243............  0.5 L..........  2.5 L.........  B...........  40

                acidic, organic,                                                                     TP27.

                n.o.s.

                                                                  II.............  8..............  148, B2, IB2, T11,  154............  202............  242............  1 L............  30 L..........  B...........  40

                                                                                TP2, TP27.

                                                                  III............  8..............  386, IB3, T7, TP1,  154............  203............  241............  5 L............  60 L..........  A...........  40

                                                                                TP28.

G............  Corrosive liquid,            8  UN3266...........  I..............  8..............  T14, TP2, TP27....  None...........  201............  243............  0.5 L..........  2.5 L.........  B...........  40, 52

                basic, inorganic,

                n.o.s.

                                                                  II.............  8..............  386, B2, IB2, T11,  154............  202............  242............  1 L............  30 L..........  B...........  40, 52

                                                                                TP2, TP27.

                                                                  III............  8..............  IB3, T7, TP1, TP28  154............  203............  241............  5 L............  60 L..........  A...........  40, 52

G............  Corrosive liquid,            8  UN3267...........  I..............  8..............  B10, T14, TP2,      None...........  201............  243............  0.5 L..........  2.5 L.........  B...........  40, 52

                basic, organic,                                                                      TP27.

                n.o.s.

                                                                  II.............  8..............  B2, IB2, T11, TP2,  154............  202............  242............  1 L............  30 L..........  B...........  40, 52

                                                                                TP27.

                                                                  III............  8..............  IB3, T7, TP1, TP28  154............  203............  241............  5 L............  60 L..........  A...........  40, 52

G............  Corrosive liquid,            8  UN3301...........  I..............  8, 4.2.........  B10...............  None...........  201............  243............  0.5 L..........  2.5 L.........  D...........

                self-heating,

                n.o.s.

                                                                  II.............  8, 4.2.........  B2, IB1...........  154............  202............  242............  1 L............  30 L..........  D...........

G............  Corrosive liquids,           8  UN2920...........  I..............  8, 3...........  B10, T14, TP2,      None...........  201............  243............  0.5 L..........  2.5 L.........  C...........  25, 40

                flammable, n.o.s.                                                                    TP27.

                                                                  II.............  8, 3...........  B2, IB2, T11, TP2,  154............  202............  243............  1 L............  30 L..........  C...........  25, 40

                                                                                TP27.

G............  Corrosive liquids,           8  UN1760...........  I..............  8..............  A7, B10, T14, TP2,  None...........  201............  243............  0.5 L..........  2.5 L.........  B...........  40

                n.o.s.                                                                               TP27.

                                                                  II.............  8..............  B2, IB2, T11, TP2,  154............  202............  242............  1 L............  30 L..........  B...........  40

                                                                                TP27.

                                                                  III............  8..............  IB3, T7, TP1, TP28  154............  203............  241............  5 L............  60 L..........  A...........  40

G............  Corrosive liquids,           8  UN3093...........  I..............  8, 5.1.........  A7................  None...........  201............  243............  Forbidden......  2.5 L.........  C...........  89

                oxidizing, n.o.s.

                                                                  II.............  8, 5.1.........  A7, IB2...........  None...........  202............  243............  1 L............  30 L..........  C...........  89

G............  Corrosive liquids,           8  UN2922...........  I..............  8, 6.1.........  A7, B10, T14, TP2,  None...........  201............  243............  0.5 L..........  2.5 L.........  B...........  40

                toxic, n.o.s.                                                                        TP13, TP27.

                                                                  II.............  8, 6.1.........  B3, IB2, T7, TP2..  154............  202............  243............  1 L............  30 L..........  B...........  40

                                                                  III............  8, 6.1.........  IB3, T7, TP1, TP28  154............  203............  241............  5 L............  60 L..........  B...........  40

G............  Corrosive liquids,           8  UN3094...........  I..............  8, 4.3.........  A7................  None...........  201............  243............  Forbidden......  1 L...........  E...........  13, 148

                water-reactive,

                n.o.s.

                                                                  II.............  8, 4.3.........  A7................  None...........  202............  243............  1 L............  5 L...........  E...........  13, 148

                                                                                * * * * * * *

               Dichloroacetic               8  UN1764...........  II.............  8..............  A3, A7, B2, IB2,    154............  202............  242............  1 L............  30 L..........  A...........

                acid.                                                                                N34, T8, TP2.

                                                                                * * * * * * *

               Dichloroacetyl               8  UN1765...........  II.............  8..............  A3, A7, B2, B6,     154............  202............  242............  1 L............  30 L..........  D...........  40

                chloride.                                                                            IB2, N34, T7, TP2.

                                                                                * * * * * * *

               Difluorophosphoric           8  UN1768...........  II.............  8..............  A7, B2, IB2, N5,    None...........  202............  242............  1 L............  30 L..........  A...........  40

                acid, anhydrous.                                                                     N34, T8, TP2.

                                                                                * * * * * * *

G............  Disinfectant,                8  UN1903...........  I..............  8..............  A7, B10, T14, TP2,  None...........  201............  243............  0.5 L..........  2.5 L.........  B...........

                liquid,                                                                              TP27.

                corrosive, n.o.s.

                                                                                * * * * * * *

G............  Dyes, liquid,                8  UN2801...........  I..............  8..............  11, B10, T14, TP2,  None...........  201............  243............  0.5 L..........  2.5 L.........  A...........

                corrosive, n.o.s.                                                                    TP27.

                or Dye

                intermediates,

                liquid,

                corrosive, n.o.s.

                                                                  II.............  8..............  11, B2, IB2, T11,   154............  202............  242............  1 L............  30 L..........  A...........

                                                                                TP2, TP27.

                                                                  III............  8..............  11, IB3, T7, TP1,   154............  203............  241............  5 L............  60 L..........  A...........

                                                                                TP28.

                                                                                * * * * * * *