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PHMSA catches up with the world
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HARMONISATION • PHMSA HAS AT LONG LAST CAUGHT UP WITH INTERNATIONAL REGULATIONS, ALTHOUGH AS EVER IT HAS CHOSEN TO OMIT SOME NEW PROVISIONS
THE CURRENT US administration in Washington, DC does not look kindly on regulation, seeing it as too often representing a burden on industry, and has pressed the various departments and agencies to refrain from additional regulation and, when new regulation is thought necessary, to provide justification for it. Under this environment, the various agencies of the US Department for Transportation (DOT) have sometimes struggled to implement safety-critical changes to the provisions contained in the Hazardous Materials Regulations (HMR).
So it has been with the latest biennial harmonisation rule from the Pipeline and Hazardous Materials Safety Administration (PHMSA), the multimodal agency that has primary responsibility for maintaining HMR. Its HM-215O rulemaking, designed to keep US regulations in step with international rules (insofar as is deemed necessary) was published as a final rule only on 11 May 2020, despite the fact that the international regulations it mirrors took effect at the start of 2019 and that the notice of proposed rulemaking (NPRM) was published on 27 November 2018.
That NPRM drew many comments, not least from those concerned that any delay to publication of the final rule would cause problems in international intermodal transport, since HMR would then be out of step. PHMSA understood their concerns and, on 18 December 2018, issued a Notice of Enforcement Policy authorising the use of the applicable international standards, viz the International Civil Aviation Organisation’s (ICAO) Technical Instructions 2019-2020 for air transport and Amendment 39-18 to the International Maritime Dangerous Goods (IMDG) Code for sea transport.
In the final rule, those two sets of regulations have been incorporated by reference into HMR, along with the 20th revised edition of the UN Recommendations on the Transport of Dangerous Goods (the ‘Model Regulations’), Amendment 1 to the 6th revised edition of the UN Manual of Tests and Criteria, and the 7th revised edition of the Globally Harmonised System of Classification and Labelling of Chemicals (GHS).
In addition, PHMSA has updated its incorporation by reference of Transport Canada’s Transportation of Dangerous Goods (TDG) Regulations to include amendments made in 2016 and 2017, and is also adopting a number of updated standards published by the International Organisation for Standardisation (ISO).
MAIN CHANGES The amendments to HMR included in HM-215O are broadly in line with those contained in the UN Model Regulations, including additions, revisions and deletions in the Hazardous
PHMSA’S HQ (OPPOSITE) HAS STRUGGLED TO GET
Materials Table (HMT) in §172.101. These include the new UN numbers and classification system for articles containing hazardous materials that do not already have a proper shipping name.
Other important changes relate to lithium batteries. There is a new requirement to make available the ‘test summary’ to subsequent distributors. HMR now requires lithium battery manufacturers to subject lithium batteries and cells to appropriate UN design tests to ensure they are classified correctly for transport, and to develop records of successful test completion, called a test report. The test summary includes a standardised set of elements that provide traceability and accountability, thereby ensuring that lithium cell and battery designs offered for transport contain specific information on the required UN tests. In response to concerns expressed in some comments, PHMSA has extended the compliance date for this measure to 1 January 2022.
PHMSA is also amending the aircraft passenger provisions to take account of baggage that is equipped with lithium batteries that power features such as location tracking, battery charging, digital weighing or motorised wheels. Such ‘smart luggage’ must be carried in the cabin of the aircraft unless the batteries are removed, unless the batteries do not exceed 0.3 g lithium content (for lithium metal batteries) or 2.7 Wh (for lithium ion batteries).
PHMSA is also adding requirements to segregate lithium cells and batteries from certain other hazardous materials, notably flammable liquids, when offered for transport or transported on aircraft. This is consistent with the ICAO Technical Instructions and also implements a recommendation from the National Transportation Safety Board (NTSB) arising from the loss of Asiana Airlines Flight 991 in July 2011.
Another major revision applies to the classification of corrosive materials, where PHMSA is now allowing alternative methods to determine the classification and packing group assignment for such materials, without carrying out physical tests.
PHMSA has, however, varied from the UN Model Regulations in terms of provisions for the transport of polymerising substances, »
delaying entry into force until 2 January 2023. This will give PHMSA time to conduct research and analyse comments and data, and allow it to evaluate the most appropriate provisions for such materials. This change responds in particular to a number of comments on the four new entries that were added in HMT in January 2017, including some critical of PHMSA’s use of Test Series E.
PHMSA has addressed a problem relating to the use of ‘NA’ entries in HMT, revising §172.101(e) to clarify that these are for use within the US only. Transport Canada made a change to the TDG Regulations as long ago as 2001, limiting the use of NA entries to materials classifi ed as consumer commodities and HMR had not been revised to refl ect this. While there was one comment against the change, PHMSA simply states that Canada does not allow NA numbers and therefore HMR cannot suggest that they can be used for cross-border transport.
ITEMS NOT ADOPTED As usual, PHMSA has chosen not to adopt some of the changes included in the UN Model Regulations. For instance, it did not pick up on the new provisions to allow the transport of vehicle fuel gas containment systems containing certain gases, such as LNG and LPG, for disposal, recycling, repair or delivery to a vehicle assembly plant. It felt that the measure, which applies to vehicles meeting certain European automotive standards, was not appropriate for domestic transport in the US (and, it has to be said, the likelihood of transatlantic transport of such items must be slim).
PHMSA did invite comments on its decision and the Council for Safe Transportation of Hazardous Articles (COSTHA) took the opportunity to challenge it, as there is a need to regulate such movements within the US and domestic motor vehicle manufacturers apply other global standards to achieve compliance with equivalent Federal Motor Vehicle Safety Standards (FMVSS). PHMSA noted, though, that FMVSS is not incorporated in HMR and to adopt its requirements would need coordination with other agencies. It invited COSTHA to fi le a petition for rulemaking if it believed that this particular provision should appear in HMR, noting that a more comprehensive review of current standards might be appropriate to refl ect existing practices in industry.
PHSMA also declined to adopt the UN’s new provisions for the transport of damaged or defective lithium cells and batteries liable to rapidly disassemble, dangerously react, or produce a fl ame, a dangerous evolution of heat, or a dangerous emission of toxic, corrosive, or fl ammable gases or vapours under normal conditions of transport. PHMSA felt that this is already covered in the existing packaging and hazard communication requirements; one comment addressed the subject and supported PHMSA’s position.
COSTHA also appealed for consideration of safety devices in dedicated handling devices, urging alignment with the IMDG Code and authorising the transport of unpackaged articles to, from or between the place of manufacture and an assembly plant. PHMSA once more felt that this is already adequately addressed in §173.166(e)(4)(i) and (ii) and declined to take the matter further.
One outstanding issue is the introduction of the principles of competency-based training, which had been delayed by ICAO and will now be included in the next round of regulatory updates. PHMSA received several comments on this topic, which it welcomed; these will be used by PHMSA to inform its position on the topic at various international regulatory fora.
CHANGES IN THE TABLE The fi nal rule is extremely lengthy, containing not just the amendments adopted to HMR but also PHMSA’s rationale behind its decisions. This will be helpful to all dutyholders but also makes the document diffi cult to get through. Nevertheless, all those with responsibilities under HMR are urged to read it carefully to determine if any of the amendments affect their operations. The rest of this article concentrates on some of the major issues, most of which derive from the 20th revised edition of the UN Model Regulations.
There are several new entries in HMT, most of which relate to the newly adopted UN 3537 to 3548 for articles containing dangerous goods of the various classes. These were
‘SMART LUGGAGE’ MUST BE CARRIED IN THE AIRCRAFT
designed to cover situations where dangerous goods or their residues are present in articles above the quantities authorised for dangerous goods in machinery and apparatus, and also to avoid the need to create new entries to deal with emerging technologies. There are numerous consequential additions and amendments throughout HMR.
Two other new entries are UN 3535 Toxic solid, flammable, inorganic, nos and UN 3536 Lithium batteries installed in cargo transport unit. The first of these addresses toxic solids with a flammable subsidiary risk of packing groups I and II; the second covers lithium metal or lithium ion batteries installed in a cargo transport unit (e.g. a freight container) and designed only to provide power outside that unit, such as in portable battery banks or for collecting solar energy.
There are numerous other changes in HMT. For UN 3302, the word ‘stabilized’ is added after the proper shipping name, 2-Dimethylaminoethyl acrylate, as the substance has been determined to polymerise under certain conditions. For UN 3316 Chemical kit or First aid kit, the packing group assignments are removed, in recognition that there are cases where the materials in the kits are not assigned to a packing group.
There were some omissions in the NPRM under HM-215O relating to special provisions for air transport. The final rule reinstates the changes that had been removed in earlier rulemakings, involving the removal of special provisions A6, A3 and A51 from a number of UN entries.
There is also a lengthy list of other changes to the special provision assignments, mainly stemming from the UN Model Regulations.
A number of amendments have been made in column (10) of HMT, which relates to vessel stowage and segregation requirements. One significant change involves the stowage codes assigned to explosive articles to allow under-deck stowage when they are not in closed cargo transport units. The Institute of Makers of Explosives (IME) commented that US ports require explosives to be containerised regardless of whether they are stowed on
or under deck; however, PHMSA says the change will allow the shipment of large and robust articles that may be too large to fit in a standard container but are instead crated appropriately. The change does not open up the possibility of breakbulk stowage.
A new stowage provision 154 has been adopted and assigned to NA 0124, NA 0494, UN 0124 and UN 0494 Jet perforating guns. This allows their stowage in accordance with the provisions of packing instruction US 1 in §173.62.
A large number of other changes to the stowage and segregation codes have been made to align with Amendment 39-19 of the IMDG Code. Likewise, 1-dodecene has been removed from the list of marine pollutants in Appendix B to §172.101.
SPECIAL PROVISIONS There are many significant amendments to the special provisions in §172.102, as follows. 132 is revised to reflect changes to the Manual of Tests and Criteria relating to UN 2071 Ammonium nitrate-based fertiliser, Class 9. There are parallel amendments elsewhere, notably in terms of the assignment of packing groups. »
150 is similarly revised to clarify that UN 2067 may only be used for ammonium nitrate-based fertilisers. 238, applicable to neutron radiation detectors containing boron trifluoride, is revised to align with special provision 373 in the UN Model Regulations. 325 is adopted from the UN Model Regulations to help shippers identify the classification of non-fissile or fissile-excepted uranium hexafluoride. 369, applicable to UN 3507 Uranium hexafluoride, radioactive material, excepted package, is amended for editorial clarity. 383, which specifies a size limit for metal drums used to transport certain high-viscosity flammable liquids, is removed, since amendments elsewhere now permit additional packaging options. 387 and 421 are revised to extend the sunset date for provisions concerning the transport of polymerising substances from 2 January 2019 to 2 January 2023. 388 is adopted from the UN Model Regulations and contains requirements for lithium batteries containing both primary lithium metal cells and rechargeable lithium ion cells that are not designed to be externally charged and which the existing provisions for lithium batteries do not adequately address. 389 is added to expand on the provisions for the new UN 3536 entry for lithium batteries installed in cargo transport units. It includes provisions that were formerly contained in special permits. the entries assigned to special provision 387, not just to those identified as polymerising substances in their prior shipping names.
On the other hand, it bowed to pressure not to make a similar change relating to the use of the word ‘SAMPLE’ as this would cause disharmony with the IMDG Code. PHMSA did, though, add polymerising substances to the list of the types of materials to which the additional documentation requirements in §172.203(o) apply.
Consistent with changes to the IMDG Code and ICAO Technical Instructions, PHMSA has removed the requirements in §172.407(c)(1) that the width of the solid line forming the inner border of labels must be at least 2 mm; in addition, the width of the solid line inner border, currently specified as 5 mm, will now be “approximately 5 mm”.
The general placarding requirements for bulk packagings specify that they must be placarded on either side and at each end; this is not practical in the case of flexible bulk containers so HMR will follow the IMDG Code in requiring them to be placarded on two opposite sides.
PACKAGING ISSUES Earlier harmonisation rulemakings (HM-215H and HM-215N) removed packing group assignments for organic peroxides, self-reactive substances, explosives and specific articles containing dangerous goods. The newly adopted UN entries for articles containing dangerous goods are also not assigned a packing group. This has had the unintended consequence of also removing those substances and articles from the materials for which the ‘material of trade’ (MOT) exception can be used.
To clear this up, PHMSA has added a new §173.6(a)(7) to clarify that materials and articles for which column (5) in HMT does not indicate a packing group are authorised
391 is added to prohibit certain high-hazard materials from being covered by the new entries for articles containing dangerous goods. 422 is revised to remove the transition period for the use of plain Class 9 labels with lithium batteries.
A56 is revised to align with the requirements in special provision A78 in the ICAO Technical Instructions for radioactive materials with subsidiary hazards.
A105 is revised to require approval for the transport by air of machinery or apparatus containing hazardous materials in excess of the limits set down in §173.222.
B136 is added to authorise non-specification closed bulk bins for certain solid substances, including copra, seed cake, fish meal, aluminium silicon powder and some ammonium nitrate-based fertilisers.
TP10, assigned to UN 1744, is revised to authorise a three-month extension for the transport of bromine portable tanks to perform the next required liner test.
W32 is deleted, following discussions by the International Maritime Organisation (IMO) on the use of hermetically sealed non-bulk packagings; W31 is assigned in its place.
DESCRIPTIONS AND MARKS PHMSA has revised §172.203(o)(2) to require that the words ‘TEMPERATURE CONTROLLED’ be added, where appropriate, to the proper shipping name for substances of Divisions 4.1 and 5.2, if not already indicated in HMT. PHMSA points out that this applies to
LEFT: PROVISIONS FOR BATTERIES IN CTUS
HAVE NOW BEEN FORMALISED
OPPOSITE: PHMSA HAS PICKED UP ON CHANGES
IN THE IMDG CODE RELATING TO STOWAGE
to use the MOT exception as applicable.
PHMSA has picked up on recent changes to the IMDG Code relating to the size limit for packagings used for viscous flammable liquids, which recognise that the low flow rate and lower level of solvent vapours mean that such substances (paints, enamels, varnishes and the like) present a lower fire risk than non-flammable viscous liquids. The maximum packaging capacity is therefore increased from 30 litres (vessel) and 100 litres (road and rail) to 450 litres. For consistency with the ICAO Technical Instructions, the limits for air transport remain at 30 litres (passenger aircraft) and 100 litres (cargo aircraft).
The IMDG Code has also amended the packaging requirements for shipments of stabilised fish meal and fish scrap and PHMSA is following suit. Previously, such substances had to be stabilised by ethoxyquin but research has indicated that two specific alternatives, butylated hydroxytoluene and tocopherol-based antioxidant are also effective. In the final rule, the required level of ethoxyquin has been reduced and reference to the other two antioxidants has been included.
The requirements in §173.159 applicable to the transport of wet batteries have been amended to specify that electrically nonconductive packaging materials must be used and that contact with other electrically conductive materials must be prevented.
During the adoption of the new entries for articles containing dangerous goods, PHMSA noted that the quantity limits for dangerous goods in equipment, machinery or apparatus in §173.222 were inconsistent with some international standards, being aligned with the ICAO Technical Instructions, while the UN Model Regulations and IMDG Code authorise up to the limited quantity amount. PHMSA has now resolved the problem, which dates back to 1999, and has increased the quantity limits for liquids and solids (but not gases) in transport other than by air.
For consistency with the UN Model Regulations, PHMSA has revised §173.224(b)(4) to authorise the transport of self-reactive substances packed in accordance with packing method OP8 (non-bulk packaging authorisation) where transport in intermediate bulk containers (IBCs) or portable tanks is permitted in accordance with §173.225, provided that the control and emergency temperatures specified in the instructions are complied with. A similar change is made in §173.225(e) and (g) relating to organic peroxides.
A new §173.232 contains requirements for the new entries for articles containing dangerous goods of various hazard classes »
and divisions. It requires packing at the PG II performance level, although non-specification packaging and unpackaged or palletised transport is also authorised, providing that the hazardous materials are afforded equivalent protection by the nature of the article in which they are contained.
OTHER HARMONISATION ISSUES PHMSA has amended §174.50, which deals with the movement of non-conforming or leaking packages (including bulk packaging such as tank cars) by rail, including the possibility of securing one-time movement approvals (OTMAs). Transport Canada has a similar programme, offering Temporary Certificates to deal with the same situation. Until now, operators moving non-conforming tank cars from Canada to or through the US would have to obtain both an OTMA and a Temporary Certificate. PHMSA has now recognised Temporary Certificates issued by Transport Canada as equivalent to OTMAs, removing the need to duplicate the process. Transport Canada has indicated that it may do the same in reverse in a future rulemaking.
PHMSA has made several revisions to §175.10, which details the specifies the conditions under which passengers, crew members, or an operator may carry hazardous materials on board an aircraft. These changes are consistent with those in the latest edition of the ICAO Technical Instructions and cover issues such as lighters powered by lithium batteries, medical devices containing radioactive materials, non-spillable batteries, the carriage of lithium batterypowered wheelchairs and other mobility aids, portable electronic devices in checked baggage, electronic smoking devices and ‘smart’ baggage.
Other amendments for harmonisation with the Technical Instructions are made in §175.33, which covers shipping papers and the notification of the pilot-in-command (NOTOC). These also largely refer to lithium batteries. Similarly, there is a new requirement that packages and overpacks containing lithium cells and batteries that bear the Class 9 label must not be stowed on an aircraft next to, in contact with, or in
VARIOUS PROVISIONS ON THE TRANSPORT a position that would allow interaction with, packages or overpacks containing other hazardous materials in Class 1 (other than Division 1.4S), Division 2.1, Class 3, Division 4.1 and Division 5.1.
In a similar manner, there are a number of amendments in §176.84 on the stowage and segregation of dangerous goods on vessels, based on changes to the IMDG Code.
There are also several changes to the references to ISO standards, mostly relating to gas cylinders and multiple-element gas containers (MEGCs).
PHMSA has followed up on changes in the UN Model Regulations on the test procedures for non-bulk packagings and packages, including the requirement to include the water temperature used in the hydraulic pressure test for plastics packagings (§178.601(l)(2)(viii)) and for rigid plastics and composite IBCs (§178.801(l)(2)(viii)). The full text of HM-215O, together with PHMSA’s comments on the amendments adopted, can be found in the Federal Register at www.federalregister.gov/ documents/2020/05/11/2020-06205/hazardousmaterials-harmonization-with-internationalstandards.
