PHMSA Publishes Latest Harmonization NPRM

On Monday, the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) in the Federal Register (79 FR 50741-50834). This NPRM is the latest in a series of rulemakings that attempts to harmonize the US Hazardous Materials Regulations (HMR) with the rules of the various international agencies that regulate the transport of hazardous materials throughout the rest of the world. These changes are necessary to make it easier for American companies to compete in international commerce.

This proposed rulemaking will adopt various changes in international regulations including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. In addition, PHMSA is also addressing harmonization related petitions by UPS (P-1631), the Council on Safe Transportation of Hazardous Articles (P-1623), and a separate COSTHA petition (P1633).

The proposed changes include:

• Incorporate Revised Standards;

• Revise HMT Entries;

• Provide Exceptions for Marine Pollutants;

• Modification of the Marine Pollutant List;

• Clarify Hazard Communication Size Requirements;

• Revise Vessel Stowage Requirements;

• Addition of Entries for Adsorbed Gases in the Hazardous Materials Table;

• Harmonized Requirements for Lithium Batteries; and

• Definition of Non-Bulk Packaging

There are eight harmonization issues that are not being addressed in this NPRM. They are:

• Damaged, Defective, and Waste Lithium Batteries

• Dimensions on Hazard Communication Examples

• Flash Composition

• Radioactive Materials Transportation Requirements

• Discarded Packages

• Used Medical Devices

• Coolants, Conditioners, and Asphyxiates

• Gas Cartridge and Fuel Cell Testing

PHMSA is soliciting public comments on this proposed rulemaking. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2013-0260). Comments need to be submitted by October 24^th, 2014.

Oh, yes. PHMSA finds itself in an uncomfortable position. Some of the changed international regulations addressed in this rulemaking go into effect on January 1^st 2015. There is absolutely no way that this rulemaking will be completed by that time. In order to allow US businesses to domestically initiate international hazardous material shipments in accordance with those revised regulations PHMSA is planning on issuing an interim final rule late in December with an effective date of January 1^st, 2015.

In effect PHMSA is saying that the public comments that it is soliciting (as required by law) are not really expected to persuade the agency to make any significant changes to this NPRM when it goes into its final form sometime next year (or perhaps later). While this is for all practical purposes generally true for these harmonization rulemakings, it does not look good for an agency to have to publicly admit it, no matter how obliquely.