US readies harmonisation rule

THE LATE SHOW

US • PHMSA HAS PUBLISHED ITS PROPOSALS FOR THE REGULAR BIENNIAL UPDATE RULEMAKING BUT IT WILL NOT BE IN FINAL FORM FOR SOME TIME YET

THE US PIPELINE and Hazardous Materials Safety Administration (PHMSA), the wing of the US Department of Transportation (DOT) that oversees the Hazardous Materials Regulations (HMR), has published a notice of proposed rulemaking (NPRM) under docket HM-215O designed to maintain harmonisation between the HMR and international regulations. The proposal incorporates many of the amendments contained in the 20th revised edition of the UN Model Regulations but, as ever, there are some variations from the UN provisions of which dutyholders both in the US and elsewhere need to be aware.

The NPRM was published on 27 November and comments were invited by 28 January. Publication of a final rule will be some time after that, so the US will be effectively out of step with the international rules that take effect on 1 January, particularly the International Civil Aviation Organisation’s (ICAO) Technical Instructions. It is unlikely, however, that PHMSA’s enforcement efforts will be applied to compliance with updated regulations. It is also worth noting that the NPRM appeared much earlier than some had anticipated.

THE MAJOR POINTS The NPRM under HM-215O includes many of the items that appear in other regulations as from 2019, such as: • New UN entries and classification system for articles containing dangerous goods • The requirement for a test summary document for consignments of lithium batteries • Amendment to the aircraft passenger provisions for baggage equipped with lithium batteries • New segregation requirements for lithium batteries and other dangerous goods,

particularly flammable liquids, in air transport, and • Alternative criteria for the classification of corrosive materials.

PHMSA is proposing to extend the sunset dates for the provisions adopted in HM-215N two years ago concerning the transport of polymerising substances by two years to 2 January 2021. This is to allow it to finalise research and analyse comments and data concerning the issue, so that it will have “a more comprehensive understanding of polymerising substances” and can consider the most appropriate transport provisions.

In particular, and partly as a result of work by its Research and Development team, PHMSA wants to hear from dutyholders as to whether they are experiencing difficulties resulting from differences between domestic and international requirements for polymerising substances, their experience of using Test Series E with polymerising substances, and whether there are any alternative tests.

NOT WANTED ON VOYAGE The aim of HM-215O is to harmonise the HMR with international requirements. However, PHMSA says, “We are not striving to make the HMR identical to the international regulations, but rather

to remove or avoid potential barriers to international transportation.” There are a number of new provisions derived from the UN Model Regulations and Amendment 3918 of the International Maritime Dangerous Goods (IMDG) Code that are not included in the NPRM, either because PHMSA believes they are already dealt with in the HMR or because they will be addressed separately. 1. PHMSA has not adopted the new special provision to allow the transport of fuel gas containment systems containing certain gases and being transported for disposal, recycling, repair, inspection, maintenance, or from the manufacturing plant to a vehicle assembly plant. PHMSA believes that the provisions in the UN Model Regulations are more appropriate for European road and rail regulations but is inviting industry’s views on whether similar provisions should be developed for inclusion in the HMR. 2. PHMSA is also not adopting new provisions for the transport of damaged and defective cells and batteries of UN 3090, 3091, 3480 and 3481. It believes that the existing packaging and hazard communication requirements in §173.185(f) of the HMR already address such consignments. 3. The IMDG Code now includes provisions for “road gas elements vehicles” – what are referred to in the road regulations as “multiple-element gas containers” (MEGCs). PHMSA says the existing provisions in the HMR authorising the use of MEGCs and tube trailers adequately address the issue. 4. The 2017-2018 edition of the ICAO Technical

Instructions included proposed revisions to the training provisions, most particularly in terms of the use of competency-based training. It was ICAO’s intention that these changes would take effect in 2019, although that has since been delayed by two years. As such, PHMSA sees the provisions as incomplete. In addition, while welcoming discussions on improving the quality of employee training and assessment, the training provisions in the HMR are not prescriptive and allow employers to tailor training programmes in a manner that best addresses its employees’ needs. While those programmes may be suited to the use of competency-based training, PHMSA is unlikely to make it mandatory. It is, though, inviting comments specific to this issue. HCB

The full details of the NPRM can be found in the Federal Register at www.federalregister.gov/ documents/2018/11/27/2018-24620/hazardousmaterials-harmonization-with-internationalstandards. HCB will take another look at the rulemaking once the final rule is published.