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PHMSA responds to petitions
THE BIG ROUNDUP
US • PHMSA HAS MADE A LARGE NUMBER OF CHANGES TO THE HAZARDOUS MATERIALS REGULATIONS IN RESPONSE TO PETITIONS FROM INDUSTRY AND UPDATES TO STANDARDS
THE US PIPELINE and Hazardous Materials Safety Administration (PHMSA) published its final rule under docket HM-219C this past 25 November; the rule includes a wide variety of amendments to the Hazardous Materials Regulations (HMR) that appear in Title 49 of the Code of Federal Regulations (49 CFR), which took effect on 28 December. Compliance is required from 26 November 2021.
The final rule includes PHMSA’s response to the 49 comments it received on the notice of proposed rulemaking (NPRM) published in August 2019. It addresses 24 petitions for rulemaking submitted by various stakeholders between February 2015 and March 2018. In passing, it also withdraws the enforcement discretion on the phase-out of mobile refrigeration systems issued in September 2017.
The changes range far and wide across HMR, taking in such diverse subjects as rail tank cars, fireworks and other explosives, paper bags, waste materials and gas cylinders. This article provides a summary of the changes but those in scope of HMR are urged to check the original rule carefully for any amendments that might affect them.
RAIL ADJUSTMENTS The Association of American Railroads (AAR) asked for an amendment to §173.31 to prohibit the use of tank cars with shells or heads manufactured of non-normalised steel for the transport of poisonous-by-inhalation (PIH) materials. AAR claimed that such steel is susceptible to brittle fracture at low temperatures. PHMSA agrees with AAR and notes that it had already considered mandating a phase-out of non-normalised steel tank cars in PIH service but had been informed that industry was already voluntarily removing such tanks from service.
Indeed, AAR has itself implemented a phase out of legacy non-normalised steel tank cars in PIH service and, as any similar action by PHMSA would have no additional costs, the Administration felt it would provide regulatory certainty for industry and merely reflect what industry is in any case already on the way to achieving. As a result, §173.31 is amended to require such tank cars to be removed from PIH service by 31 December 2020.
AAR and other industry associations also petitioned PHMSA to convert the interim rail tank car specifications issued in January 2009 as part of the HM-246 final rule into final specifications for tank cars in PIH service. The joint petition noted that tank cars built in compliance with the interim specifications had proven themselves in service with no noteworthy safety concerns.
The HM-246 rule was the result of industry consensus that an updated regulatory standard
PHMSA HAS WORKED LONG AND HARD ON THE
HM-219C FINAL RULE, MAKING NUMEROUS
was necessary to improve accident survivability, while research continued into a long-term solution. The Advanced Tank Car Collaborative Research Program (ATCCRP) has since found that those interim specifications – which include stronger tanks made from normalised steel and capable of withstanding higher tank test pressures, fittings, tank head-puncture resistance protection, and thermal protection for some commodities – do indeed provide significant safety improvements over legacy designs and says that there is little in the way that could be added. In addition, PHMSA received supportive comments from two major shippers (Dow Chemical and Chemours) and other bodies noting that, by making the interim specifications permanent, PHMSA would provide regulatory certainty and long-term confidence in the construction of tanks to that specification. Further, on the back of a suggestion from AAR, PHMSA has worked closely with its counterparts at Transport Canada to assign a unique designator – DOT-105H600W – so that the tanks can be used easily in cross-border transport.
In the final rule, therefore, PHMSA is amending §§173.314(c) and 173.244(a)(2) to make the specifications laid out in HM-246 permanent for the transport of PIH materials.
AAR further petitioned that PHMSA include a six-year phase-out period for tank cars that do not meet the HM-246 specifications. PHMSA had not specified a phase-out period in the HM-246 final rule, in the belief that voluntary efforts by many fleet owners would deliver the phase-out even more rapidly than it was considering. As the situation developed, however, it appears to AAR that such a voluntary phase-out has not thus far eliminated legacy tanks from PIH service entirely.
Since then, PHMSA has been in discussion with the Federal Railroad Administration (FRA), AAR, major PIH shippers and other industry bodies, who again felt that regulatory action would provide market certainty. PHMSA proposed a phase-out deadline of 31 December 2027, backed by AAR rules, which will be adopted as an amendment in §173.31.
UPDATES TO STANDARDS PHMSA had received a number of petitions to update standards and other material referenced in HMR. Firstly, a number of Compressed Gas Association (CGA) standards, incorporated by reference in §171.7, were well out of date. On the basis of petitions and supporting comments, the final rule updates: - CGA C-6.3, Standard for Visual Inspection of Low-Pressure Aluminium Alloy Cylinders, replacing the first edition (1991) with the third (2013) - CGA S-7, Methods for Selecting Pressure
Relief Devices for Compressed Gas Mixtures in Cylinders, replacing the fourth edition (2005) with the fifth (2013) - CGA C-11, Practices for Inspection of
Compressed Gas Cylinders at Time of
Manufacture, replacing the third edition (2001) with the fifth (2013) - CGA C-6.1, Standards for Visual Inspection of High-Pressure Aluminium Compressed
Gas Cylinders, replacing the fourth edition (2002) with the new 2013 edition. It was noted by three commenters that there are even more recent editions of these standards. However, PHMSA has declined to reference those as it has not yet evaluated them. It has, though, encouraged industry to petition for inclusion of these newer editions.
Trinity Containers petitioned for the incorporation by reference of certain sections of the 2017 edition of the American Society of Mechanical Engineers’ (ASME) Boiler and Pressure Vessel Code (BPVC), which included significant revisions. Trinity said that, if HMR is not revised to recognise these new standards, ASME certificate holders would be obliged to comply with obsolete standards.
There were a number of comments, mostly supportive but noting other necessary changes. PHMSA has therefore incorporated by reference the revised versions of Section II, Parts A and B, Section V, Section VIII, division 1, and Section IX. It has not, though, made any change to the ‘design margin’ for DOTspecification cargo tanks, following a similar decision when the 2015 edition of BPVC was incorporated. An additional editorial change amends reference to standard UG-32(e) to UG-32(d).
The Institute of Makers of Explosives (IME) petitioned PHMSA to update §171.7(r) to incorporate by reference the AESC/IME jet perforating gun (JPG) standard, the Guide to Obtaining DOT Approval of Jet Perforating Guns, version 02 dated September 2017, and to include a new §173.67 codifying PHMSA’s current practice of excepting JPGs that conform to the standard from the testing normally required.
PHMSA notes that it has used this standard in its review of applications since 2008 and »
INDUSTRY HAD PETITIONED FOR REGULATORY
has not found the practice to be unsafe. Furthermore, the new edition is potentially more conservative. It is, therefore, adopting the changes suggested by IME in the final rule.
The American Pyrotechnics Association (APA) petitioned for the incorporation by reference of the 2018 edition of its Standard 87-1, Standard for the Construction and Approval for Transportation of Fireworks, Novelties and Theatrical Pyrotechnics, to replace the outdated reference to the 2001 edition. The Standard has been significantly revised and restructured, reflecting advances in product safety and design over the intervening period.
PHMSA received plenty of comments on the proposed changes, both supporting and opposing the amendments, and many of them going into detail regarding specific articles. Having considered these comments, it has decided to refer to the updated Standards 87-1A, B and C along with their respective lists of permitted and restricted chemicals in Appendix I. It will not, though, reference other appendices. PHMSA says it expects the updated standard to provide clarity to the fireworks industry while ensuring the safe transport of fireworks and streamlining the EX approval process.
LIMITED QUANTITIES Steris had petitioned PHMSA to extend the limited quantity provisions to UN 2014 Hydrogen peroxide aqueous solution, to harmonise with the UN Model Regulations and other international regulations. Having looked into the matter, PHMSA could find no reason to deny the petition, which if nothing else will make international transport of small quantities of UN 2014 simpler.
URS Corporation had submitted a broader petition asking for the limited quantity provisions to be extended to 45 additional entries, noting that these too are permitted for carriage under the limited quantity provisions in international regulations and that inconsistency causes confusion.
PHMSA had conducted a technical review and in the end identified 114 entries in the Hazardous Materials Table that are not in alignment with the UN Model Regulations as far as limited quantity provisions are concerned, including the 45 noted by URS. In addition, 64 of those entries also diverge from the provisions of the International Civil Aviation Organisation’s (ICAO) Technical Instructions in this regard. In a comment on the NPRM, the Council on Safe Transportation of Hazardous Articles (COSTHA) and the International Vessel Operators Dangerous Goods Association (IVODGA) had also spotted that, while packing group II material of UN 3170 Aluminum smelting by-products is permitted for carriage under the limited quantity provisions, packing group III material is not, which PHMSA agreed was an oversight.
PHMSA has therefore agreed to amend the Hazardous Materials Table by extending the limited quantity provision to all 114 entries that were out of step with the UN Model Regulations.
A similar problem of disharmony had been noted by Evonik, which had petitioned PHMSA to revise how the word ‘stabilized’ should appear when providing the shipping name of a hazardous material. HMR does not currently allow ‘stabilised’ as part of the proper shipping name, putting it at variance with the International Maritime Dangerous Goods (IMDG) Code, which requires its inclusion when stabilisation is required prior to transport. Evonik said this situation causes needless discrepancies. Comments were made in support of Evonik’s position.
Again, PHMSA had conducted a technical review, which confirmed that materials that have some instability but that are not specifically identified or classified as selfreactive substances or organic peroxides cannot be shipped in compliance with both the IMDG Code and the HMR as currently written. It has, as a result, amended §172.101(c) to clarify that the word ‘stablized’ must be included as part of the proper shipping name when HMR requires stabilisation before transport.
EXPLOSIVES On similar lines, IME had petitioned for the removal of special provision 103 from four
REFERENCES TO SEVERAL CGA STANDARDS
entries for detonators, UN 0361, 0365, 0255 and 0267, to harmonise with the UN Model Regulations. This proposal received only supporting comments. On review, PHMSA felt that special provision 103 is now outdated, as the UN Model Regulations now requires that detonators must pass the Test Series 6 requirements in the Manual of Tests and Criteria in order to be classified as Division 1.4B. HMR has in other areas been aligned with the UN performance-based classification method for explosives and it would seem that special provision 103 is no longer widely used. As a result, PHMSA agreed with the petition, removing reference to SP103 from the four entries in the Hazardous Materials Table and deleting the special provision altogether from §172.102.
Ford Motor Company had petitioned for the addition of special provision 166 against UN 0503 Safety devices, pyrotechnic, in line with the packaging exceptions already authorised for other safety devices. Since the NPRM was published, PHMSA had asked stakeholders for information and data regarding the classification of safety devices and is still processing the responses. For now at least, it has not made any changes as a result of Ford’s petition but may consider it in a future rulemaking.
MARKING AND LABELLING A private petition sought the revision of §172.302(b)(2) to align with 5.3.2.0.2 of the IMDG Code and allow a minimum height of 12 mm for proper shipping name markings on portable tanks with a capacity of less than 3,785 litres (1,000 gallons). The current requirement is for markings to have a height of at least 25 mm (1 inch). PHMSA considers that alignment with the IMDG Code would not cause a reduction in the effectiveness of hazard communication or safety and has agreed to make the change.
Matson petitioned PHMSA to amend §173.308(d)(3) to remove the requirement for a warning to be placed on the access door of a closed transport vehicle or a closed freight container when lighters are transported by vessel, once more for the sake of harmonisation with the IMDG Code. liners for fibreboard boxes. The Association based its justification that the two processes use the same or technically equivalent machines.
Reviewing the technical data provided in the petition, PHMSA agreed that such a move would not affect the safety of packaging and would generate not insignificant cost savings for industry. One comment received on the NPRM proposed extending the change to 11G packagings but, while this idea may have merits, it would require further stakeholder engagement before being adopted. For now, though, PHMSA is making the change as requested for multi-wall shipping sacks.
Veolia petitioned for the amendment of §171.8 by adding a definition of ‘waste material’ to allow for all waste material to be managed in accordance with the lab packs exception in §173.12, regardless of whether it meets the Environmental Protection Agency’s (EPA) definition of ‘hazardous waste’. The lab pack exception for waste provides relief from some packaging requirements in HMR to facilitate the transport for disposal of certain waste materials.
An earlier letter of interpretation from PHMSA explained that the lab packs exception applied only to those wastes meeting the EPA definition; however, in reviewing the petition, PHMSA noted that this was not specified in the final rule of December 1990 that codified §173.12(b). It agreed that opening the exception up to other wastes would make it easier for regulated entities to dispose of waste in a way that is consistent with HMR. It has therefore included a new definition of waste material that implements that change.
CGA petitioned PHMSA for a modification of §§171.23, 173.302 and 173.304 to permit the transport of European ‘pi-marked’ pressure receptacles in the US; currently this is allowed only through the use of special permits. The petition sought a change to HMR to allow the import, storage, transport, discharge and export of filled cylinders as well as the import of empty cylinders for filling, storage and export, without the need for a special permit. Entegris commented on the petition, requesting additional changes to allow the shipment of adsorbed gases in pi-marked cylinders.
PHMSA noted that more than 3,000 shipments of such pressure receptacles »
PHMSA considered the matter and could find no compelling safety justification for the presence of the requirement in HMR and is therefore removing it.
PACKAGING The Reusable Industrial Packaging Association (RIPA) petitioned PHMSA for a revision of §173.28(c)(1)(i), which requires the complete removal of labels and coatings from metal drums during the reconditioning process, arguing that it is practically impossible. PHMSA responded in the NPRM with an alternative wording but RIPA felt that the wording was too specific, arbitrary in its requirements and difficult to enforce.
After further consideration, PHMSA agreed that its proposal was impracticable and that alternative wording offered by RIPA would achieve the ends it sought. As a result, the wording of that paragraph will be changed to: Cleaning to base material of construction, with all former contents, internal and external corrosion removed, and any external coatings and labels sufficiently removed to expose any metal deterioration that adversely affects transportation safety.
The Paper Shipping Sack Manufacturers Association had petitioned PHMSA to amend §178.521 to revise the basis weight tolerances for liners and mediums used in the multi-wall shipping sacks from ±5 per cent to ±10 per cent, in line with a change made earlier to
have taken place under special permits and, also, that there is extensive operational experience of their safe transport in international trade. PHMSA also felt that, by making the change, it would not increase the number of pi-marked cylinders transported in the US. It has therefore agreed the changes proposed by both CGA and Entegris and, to align with similar provisions in ADR, will require a notation on the shipping paper to certify compliance with the pi-marked cylinder requirements.
OTHER ISSUES The International Institute of Ammonia Refrigeration (IIAR) petitioned for a revision to §173.5b to allow the continued use of mobile refrigeration units, as commonly used in the US produce industry, that were placed into service prior to 1991, provided that they are tested to a service pressure of 250 psig. As currently written, HMR requires that these refrigeration units be phased out by 1 October 2017, although PHMSA issued an enforcement discretion permitting their continued use just before that deadline. says that its experience in administering similar alternative reporting requirements under existing HMR provisions shows that the flexibility provided does not adversely affect safety. As a result, it is amending the language in that paragraph to remove any reference to the date of manufacture.
CYLINDER REQUALIFICATION PHMSA published a rather briefer final rule under docket HM-219B on 30 October 2020, amending the requalification periods for certain DOT 4-series specification cylinders in non-corrosive gas service. This rule responded to a petition from the National Propane Gas Association (NPGA). PHMSA notes that there have been a number of changes to the initial and subsequent requalification periods for both volumetric and proof pressure testing, set down in §180.209(e), over recent years and NPGA asked PHMSA to restore the periods shown prior to the HM-233F final rule, which took effect in February 2016 and sought to align the periodicity with the international regulations. However, NPGA said, changing the requalification period from 12 to 10 years had increased costs and caused confusion, especially as such cylinders are usually stamped with the next due test date and employees were being expected to ignore those markings.
Several comments were received on the NPRM under HM-219B and, after reviewing them, PHMSA determined that the amendments proposed would be adopted. As a result, the requalification periods in §180.209(e) are now amended to allow for a 12-year initial requalification by volumetric expansion testing or proof pressure testing, and 12-year subsequent requalification periods by volumetric expansion testing. It does not disturb existing HMR provisions providing for 10-year subsequent requalification periods for proof pressure testing. In addition, it makes clarifying and conforming editorial changes to the requalification table in § 180.209(a).
PHMSA explains that the purpose of §173.5b was to eliminate the use of systems with a maximum allowable working pressure of 150 psig and that, therefore, requiring them to be tested to a service pressure of 250 psig achieves that aim. It is therefore adopting the change asked for by IIAR and also withdrawing its enforcement discretion as it will no longer be needed.
Polar Service Systems petitioned PHMSA to remove the words “manufactured before September 1, 1995” from §180.417(a)(3), so as to allow the use of an alternative report in lieu of obtaining the manufacturer’s certificate of compliance for those cargo tanks manufactured after that date. Some manufacturers have gone out of business over that period and it can be impossible for cargo tank owners to obtain replacement certificates. PHMSA acknowledged that there can be challenges in obtaining the required documentation for cargo tanks and cargo tank motor vehicles, irrespective of the timeframe set down in HMR. In addition, testing and recordkeeping requirements would provide much of the same information. PHMSA also
IMPORTANT CHANGES WILL ALLOW THE
