DOT Issues Proposed Rule to Harmonize HMR with International Standards

by Bergeson & Campbell, P.C.

On August 25, 2014, the Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a proposed rule seeking to harmonize the hazardous materials regulations (HMR) with international regulations and standards. 79 Fed. Reg. 50741. The rule would revise proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. The comment period on the proposed rule closes on October 24, 2014. PHMSA believes the proposed changes are non-controversial and thus a 60-day comment period is ample.

The main changes to the HMR proposed by PHMSA are:

·  Incorporate Revised Standards: PHMSA proposes to incorporate by reference the most recent versions of various international hazardous materials standards, including the 2015–2016 International Civil Aviation Organization (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air, Amendment 37–14 to the International Maritime Dangerous Goods Code (IMDG Code), the International Atomic Energy Agency (IAEA) Safety Standards for Protecting People and the Environment; Regulations for the Safe Transport of Radioactive Material, No. SSR–6, (IAEA Regulations), 2012 Edition, and the 18th Revised Edition of the United Nations Recommendations on the Transport of Dangerous Goods (UN Model Regulations). PHMSA also proposes to update its incorporation by reference of the Canadian Transportation of Dangerous Goods Regulations to and to adopt updated International Standards Organization (ISO) standards.

·   Revise HMT Entries: PHMSA proposes amendments to the Hazardous Materials Table (HMT) at 49 CFR Section 172.101 to add, revise, or remove certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, passenger and cargo aircraft maximum quantity limits. The proposed changes to the HMT mirror recent changes in the Dangerous Goods list of the 18th Revised Edition of the UN Model Regulations, the IMDG Code, and the ICAO Technical Instructions.

·   Provide Exceptions for Marine Pollutants: PHMSA proposes an exception from the HMR for marine pollutants up to 5 liters (1.3 gallons) for liquids or 5 kilograms (11 pounds) for solids when these materials are packaged in accordance with the general packaging requirements of 49 CFR Sections 173.24. The proposed amendment would exempt small packages of hazardous material from the HMR that are regulated only because of the presence of one or more marine pollutants. PHMSA argues that materials in these quantities pose a low risk in transport and this proposal simplifies the current exceptions for marine pollutants and reduces impediments to transport of these goods.

·    Modification of the Marine Pollutant List: PHMSA is proposing to modify the list of marine pollutants in Appendix B to the HMT. PHMSA periodically updates its list based on changes to the IMDG Code and evaluation of listed materials.

·   Clarify Hazard Communication Size Requirements: PHMSA is proposing to add minimum sizes for the OVERPACK and SALVAGE markings. These markings would be characters at least 12 mm (.47 inches) high.

·   Revise Vessel Stowage Requirements: PHMSA is proposing to revise and add vessel stowage codes listed in column 10B of the HMT and segregation requirements in 49 CFR Section 176.83 consistent with the IMDG Code. PHMSA also proposes to increase the required segregation distances between Division 4.3 dangerous when wet materials, Class 3 flammable liquids and Division 2.1 flammable gases.

·   Addition of Entries for Adsorbed Gases in the Hazardous Materials Table: Consistent with amendments adopted into the UN Model Regulations, PHMSA is proposing to revise the HMT to include seventeen new entries for adsorbed gases. PHMSA also proposes to add into the HMR a definition for adsorbed gas, authorized packagings, and safety requirements including but not limited to quantity limitations and filling limits.

·  Harmonized Requirements for Lithium Batteries: PHMSA proposes harmonization with the latest version of the ICAO Technical Instructions to ensure that the information currently authorized by the HMR to be provided by means of an alternative document be included on a shipping paper for batteries transported under the provisions of 49 CFR Section 173.185(c)(4)(v), which is equivalent to ICAO Packing Instructions 965 and 968. PHMSA also proposes require a “CARGO AIRCRAFT ONLY” label on packages containing small lithium metal batteries not packed in or with equipment.

·   Definition of Non-Bulk Packaging: PHMSA proposes to revise the definition of non-bulk packaging to include bags and boxes conforming to the applicable requirements for specification packagings in subpart L of 49 CFR Part 178, if they have a maximum net mass of 400 kilograms (882 pounds) or less.

PHMSA states that if the amendments in this proposed rule are not adopted in the HMR by January 1, 2015 -- the date most of the international standards above take effect -- U.S. companies will be at an economic disadvantage. These companies will be forced to comply with a dual system of regulations, and PHMSA states that the amendments proposed in this rulemaking are intended to avoid this result. Moreover, PHMSA argues that the proposed revisions to the HMR will result in minimal burdens on the regulated community and that the majority of amendments in this proposal should result in cost savings and ease the regulatory compliance burdens.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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