October 2016

U.S. DOT PHMSA publishes significant rulemaking proposal

On Sept. 7, 2016, the U.S. Dept. of Transportation’s (DOT) Pipeline & Hazardous Materials Safety Administration (PHMSA) published its Notice of Proposed Rulemaking (NPRM) HM-215N in the Federal Register. HM-215N is intended to further harmonize the DOT’s Hazardous Materials Regulations (HMR) with the international requirements for the transport of dangerous goods.

The United Nations’ Model Regulations (UNMR) is generally updated once every two years. In response, PHMSA typically posts a Notice of Proposed Rulemaking (NPRM) to keep the U.S. HMR in line with the UNMR after the UN releases its updated edition.

Once finalized, changes proposed in the HM 215N rulemaking will take effect on Jan. 1, 2017. Significant changes to the 49 CFR subchapter C hazardous materials transportation rules proposed in HM-215N include, but are not limited to:

  • Incorporating-by-reference (IBR) the latest editions of the international requirements including the International Civil Aviation Organization (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air (2017-2018 ed.) and the 2016 International Maritime Dangerous Goods (IMDG) Code (Amendment 38-16).
  • Making updates and changes to the 49 CFR 172.101 Hazardous Materials Table in line with changing international standards
  • Updating the hazard communication (marking and labeling) requirements for lithium batteries
  • Amending the packaging requirements for vessel transportation of water reactive substances (consistent with the IMDG Code)
  • Updating the Hazardous Materials Table entries for transportation of engines, machines containing engines and polymerizing substances
  • Amending certain requirements for cylinder requalification, repair and inspection

International Standards

PHMSA proposes to incorporate by reference the newest versions of various international hazardous materials standards, including the:

  • 2017–2018 Edition of the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions)
  • International Maritime Dangerous Goods Code (IMDG Code), Amendment 38-16
  • 19th Revised Edition of the United Nations Recommendations on the Transport of Dangerous Goods (UN Model Regulations)
  • 6th Revised Edition of the United Nations Manual of Tests and Criteria; and
  • 6th Revised Edition of the Globally Harmonized System of Classification & Labeling of Chemicals.

Additionally, PHMSA proposes to update 49 CFR §171.7 to incorporate by reference the Canadian Transportation of Dangerous Goods (TDG) Regulations including amendments SOR/2014-152 and SOR/2014-159, published on July 2, 2014.

Hazardous Materials Table Updates

PHMSA also proposes several amendments to the 49 CFR §172.101 Hazardous Materials Table (HMT) consistent with recent changes in the Dangerous Goods List of the 19th Revised Edition of the UN Model Regulations, the IMDG Code and the ICAO Technical Instructions. Specifically, PHMSA propose amendments to the HMT to add, revise or remove certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements and passenger and cargo aircraft maximum quantity limits.

Polymerizing Substances

PHMSA proposes to revise the HMT consistent with amendments adopted into the UN Model Regulations. Specifically, it proposes to include into the HMT four new Division 4.1 entries for polymerizing substances and to add into the HMR defining criteria, authorized packagings and safety requirements including, but not limited to, stabilization methods and operational controls.

Marine Pollutant Modifications

PHMSA proposes to modify the list of marine pollutants in appendix B to § 172.101. The HMR maintain this list as the basis for regulating substances toxic to the aquatic environment and allow use of the criteria in the IMDG Code if a listed material does not meet the criteria for a marine pollutant. PHMSA periodically updates this list based on changes to the IMDG Code and evaluation of listed materials.

Packaging Requirements for Water-Reactive Materials Transported by Vessel

PHMSA proposes various amendments to packaging requirements for vessel transportation of water-reactive substances consistent with requirements in the IMDG Code. The amendments include changes to the packaging requirements to require certain commodities to have hermetically sealed packaging and to require other commodities—when packed in flexible, fiberboard or wooden packagings—to have sift-proof and water-resistant packaging or packaging fitted with a sift- proof and water-resistant liner.

Hazard Communication Requirements for Lithium Batteries

PHMSA proposes to revise hazard communication requirements for shipments of lithium batteries consistent with changes adopted in the 19th Revised Edition of the UN Model Regulations. Specifically, PHMSA proposes to adopt a new lithium battery label in place of the existing Class 9 label; to amend the existing marking requirements for small lithium battery shipments in §173.185(c) to incorporate a new standard lithium battery mark for use across all modes; to delete the documentation requirement in §173.185(c) for shipments of small lithium cells and batteries; and to require the lithium battery mark be applied to each package containing small lithium cells or batteries contained in equipment when there are more than four lithium cells or two lithium batteries installed in the equipment or where there are more than two packages in the consignment.

Engine, Internal Combustion/Machinery, Internal Combustion

PHMSA proposes to harmonize the HMT proper shipping names utilized for the transportation of engines and machinery containing engines with those in the UN Model Regulations. Additionally, PHMSA proposes harmonization with the IMDG Code for domestic vessel shipments of engines, internal combustion and machinery containing combustion engines. Under the proposals in this NPRM, the existing “Engine, internal combustion” entries would be assigned their own UN numbers and hazard class based on the type of fuel (e.g. a flammable liquid powered engine is assigned a proper shipping name with a Class 3 designation). Existing requirements and exceptions for the transportation of engines and machinery containing engines transported by road, rail and aircraft would remain unchanged. PHMSA is, however, proposing to harmonize the transportation requirements for transportation by vessel, which includes varying degrees of hazard communication based on the type of fuel, amount of fuel and capacity of the fuel tank.

Aerosols

Although the 19th Revised Edition of the UN Model Regulations includes changes to the large packaging requirements for waste aerosols, including a notable change to the packing group (PG) performance level required for large packagings transporting waste aerosols—from PG III to PG II. However, the HMR do not currently authorize the use of large packagings for aerosols. Therefore, PHMSA is not proposing any changes to the current HMR requirements for large packagings for waste aerosols.

However, PHMSA is proposing to revise the definition of “aerosol” to clarify that it is an article. Currently under the HMR, an aerosol is considered to be an article and therefore the use of inner packagings in a combination package is not necessary. However, practice has shown that an aerosol is often mistaken for the inner packaging of a combination packaging, including both the substance dispensed (liquid, paste or powder) and the propellant gas itself.

A copy of the HM-215N NPRM is available for download at the following link:

http://www.phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Files/HM_215N_NPRM_Signed_Copy.pdf