PHMSA Publishes New HMR Harmonization NPRM

Today the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) in the Federal Register (81 FR 61741-61831). PHMSA is initiating this latest version of their biennial process to harmonize the HMR with international regulations and standards. According to the Executive Summary, PHMSA is proposing to amend the Hazardous Materials Regulations (HMR) “to maintain consistency with international regulations and standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements”.

Changes

The proposed changes include:

• Incorporation by Reference: PHMSA proposes to incorporate by reference the newest versions of various international hazardous materials standards;

• Hazardous Materials Table (HMT): PHMSA proposes amendments to the §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;

• Provisions for Polymerizing Substances: PHMSA proposes to revise the HMT consistent with amendments adopted into the UN Model Regulations, including adding to the HMT four new Division 4.1 entries for polymerizing substances;

• Modification of the Marine Pollutant List: PHMSA proposes to modify the list of marine pollutants in appendix B to §172.101 based upon 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;

• 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;

• 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; and

• U.S.-Canada Regulatory Cooperation Council (RCC) Proposals: PHMSA proposes several amendments to the HMR resulting from coordination with Canada under the U.S.-Canada RCC.

A number of recent changes to international regulations were specifically not included in the NPRM they include:

• Large Salvage Cylinders: The 17th Revised Edition of the UN Model Regulations includes guidelines for Competent Authorities to use when issuing approvals for salvage pressure receptacles;

• Large Packagings for Waste Aerosols: The 19th Revised Edition of the UN Model Regulations includes changes to the large packaging requirements for waste aerosols;

• Table Tennis Balls: The 19th Revised Edition of the UN Model Regulations includes a special provision assigned to “UN 2000, Celluloid” that excepts table tennis balls made of celluloid from the requirements of the Model Regulations;

• IMO Portable Tank Marking: Amendment 38-16 to the IMDG Code includes an amendment to require IMO portable tanks manufactured before January 1, 2003, to be marked with an indication of the portable tank instruction for which it meets the minimum test pressure, minimum shell thickness, pressure relief requirements, and bottom opening requirements;

• Classification Inconsistencies: The 19th Revised Edition of the UN Model Regulations includes text to address situations in which a consignor who is aware, on the basis of test data, that a substance listed by name in column 2 of the Dangerous Goods List in Chapter 3.2 of the UN Model Regulations meets classification criteria for a hazard class or division that is not identified in the list, may with the approval of the competent authority consign the substance;

• Filling Procedures for UN Pressure Receptacles: The 19th Revised Edition of the UN Model Regulations includes text in P200 requiring the filling of pressure receptacles to be carried out by qualified staff using appropriate equipment and procedures;

• Intentionally Infected Animals: The 2017-2018 ICAO Technical Instructions adopted changes to the classification framework for infected live animals and animal materials;

• Special Aircraft Operations: The 2017-2018 ICAO Technical Instructions adopted changes to the general exceptions for hazardous materials carried by an aircraft in special aircraft operations;

• Enhanced Safety Provisions for Lithium Batteries Transported by Aircraft: The 2015-2016 Edition of the ICAO Technical Instructions adopted enhanced safety provisions for lithium batteries transported by aircraft, effective April 1, 2016;

• Sterilization Devices Containing Nitrogen Tetroxide or Nitric Oxide: The 2017-2018 ICAO Technical Instructions adopted special provision A211 to allow for the transport of sterilization devices that contain small quantities of “UN 1067, Nitrogen dioxide” and “UN 1660, Nitric oxide, compressed” by both passenger and cargo aircraft;

• Cylinders Containing Gases for Use in Fire Extinguishers or Stationary Fire-Fighting Installations;

Interim Final Rule

PHMSA notes that a number of the international rule changes will become effective on January 1^st, 2017. With it being unlikely that this rulemaking will be complete on that date PHMSA reports that they “will publish a bridging document in the form of an interim final rule to amend the HMR by incorporating the 19th Revised Edition of the UN Recommendations and the 2017-2018 Edition of the ICAO Technical Instructions”. IDMG code changes would not be included in that interim final rule since they do not become effective until January 1^st, 2018.

Polymerizing Substances

The proposed changes to the HMR for polymerizing substances includes adding special provision 387 for the four new “n.o.s.” HMT entries for polymerizing substances and to the 52 named substances in the HMT that polymerize, all of which contain the text “stabilized” as part of the proper shipping name;

The four new HMT entries for polymerizing substances that do not meet the criteria for inclusion in any other hazard class are:

• UN 3531 Polymerizing substance, solid, stabilized, n.o.s.

• UN 3532 Polymerizing substance, liquid, stabilized, n.o.s.

• UN 3533 Polymerizing substance, solid, temperature controlled, n.o.s.

• UN 3534 Polymerizing substance, liquid, temperature controlled, n.o.s.

Commentary

The provisions for polymerizing substances are intended to ensure that chemicals that generate heat during the polymerization process (a potential hazard to the transporter) that require temperature control to prevent the polymerization are properly identified and packaged. For the 52 specifically listed materials in the HMR this is a great idea and is long overdue. Unfortunately, the same cannot be said for the four new ‘n.o.s.’ polymerizing substance entries added to the HMR.

The major problem with these entries is that there is no definition of ‘polymerizing substances’ in HMR to guide shippers in applying these new entries. The closest that we come is temperature requirements in the new Special Provision 387 or the discussion in the preamble that notes that the current 52 HMR entries that this SP apply to all contain the word ‘stabilized’ in the description. PHMSA and the international regulating community really need to provide a specific definition for ‘polymerizing substance’ for these provisions to be effective.

Public Comments

PHMSA is soliciting comments on the proposed changes to the HMR. Written comments may be submitted via the Federal eRulemaking Portal {www.Regulations.gov; Docket #PHMSA-2015-0273 (HM-215N)}. Comments should be submitted by November 7^th, 2016.