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August 24, 2010

DOT Proposes to Harmonize Air and Marine Transport Regulations with International Standards

The ACTA Group

On August 24, 2010, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a proposed rule seeking to harmonize the Hazardous Materials Regulations (HMRs) with international standards. 75 Fed. Reg. 52069. The proposal revises several proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. PHMSA states that these revisions are necessary for the HMRs to be consistent with recent changes made to the International Maritime Dangerous Goods Code (IMDG), the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO TI), and the United Nations Recommendations on the Transport of Dangerous Goods — Model Regulations. Comments on the proposed changes must be submitted to PHMSA by October 25, 2010.

The proposed rule would amend several key components of the HMRs and to the shipping requirements for several hazardous materials. The major proposed changes are as follows:

  • Hazardous Materials Table (HMT): Amendments to the HMT to add, revise, or remove certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, passenger and cargo aircraft maximum quantity limitations, and vessel stowage provisions.
  • Limited Quantity Exceptions: The proposal would revise this commonly used exception. Amendments for the highway, rail, and marine transportation of limited quantities are based on the recently adopted limited quantity provisions in the UN Model Regulations and IMDG Code. Amendments for the air transportation of limited quantities are based on the 2011?2012 revision of the ICAO TI. In addition, PHMSA is proposing a transition period for complete alignment of the HMR limited quantity eligibility (including consumer commodities) when transported by all modes (domestic and international), in accordance with HMR requirements that are based on international standards for limited quantities and consumer commodities.
  • Organic Peroxide Tables: PHMSA is proposing amendments to the Organic Peroxide Tables to add, revise, or remove certain hazardous materials and provisions.
  • Incorporation by Reference: The proposal would incorporate by reference the 2011?2012 ICAO TI, Amendment 35?10 to the IMDG Code, and the Sixteenth Revised Edition of the UN Model Regulations. PHMSA is also proposing to update its incorporation by reference of the Canadian Transportation of Dangerous Goods Regulations to include recent amendments to the Canadian regulations. This incorporation by reference augments the broad reciprocity provided in 49 C.F.R. Section 171.12 where the HMR allow the use of the Canadian TDG Regulations under certain conditions when transporting hazardous materials to or from Canada by highway or rail.
  • Petition for Rulemaking: PHMSA is addressing in the proposal a petition from the People for the Ethical Treatment of Animals (PETA) requesting that PHMSA incorporate by reference OECD Guidelines 430, 431, and 435 into the HMR that prescribe in vitro testing methods for determining corrosivity. This revision, if issued in final form, could expand the universe of materials considered to be corrosive (Class 8) under the HMRs.
  • Classification of Sour Crude Oil: PHMSA states that the transportation of sour crude oil “may pose risks due to its inherent potential of evolving hydrogen sulfide.” Based on the risk of toxic vapors, the UN Model Regulations were amended by assigning a new identification number and shipping description for sour crude oil with a flammable primary hazard and a toxic subsidiary hazard. Additionally, a new special provision was added specifying the assignment of a Packing Group (PG) based on the degree of danger presented by either the flammability or toxicity hazard of the sour crude oil.

PHMSA proposes a partial adoption of these changes. It has proposed to include the new proper shipping name in the UN Model Regulations — ”Petroleum sour crude oil, flammable, toxic” — with the letter ”I” in Column (1) of the HMT indicating that this description may be used for international transportation. PHMSA is not proposing to require use of the new proper shipping name for domestic transportation, however. Additionally, PHMSA is proposing a new marking be applied to bulk packagings containing sour crude to communicate the potential inhalation risk in transportation.

Other changes proposed by PHMSA include revised classification of certain Division 1.4S explosives, changes to the intermediate bulk container (IBC) rebottling standards, and revisions to the standards for metal hydride storage systems. PHMSA is not, however, proposing to adopt all of the changes from the amendments made to the various international standards. In many cases, PHMSA has chosen to not adopt the amendments to the international recommendations and because the framework or structure of the HMR makes adoption unnecessary. In other cases, PHMSA is addressing the changes through current or future rulemakings. The best example of this is PHMSA’s decision to not adopt changes to the requirements for transporting lithium batteries by air, because PHMSA has already adopted revisions for lithium batteries.