PHMSA published the HM-215M Notice of Proposed Rulemaking (NPRM) on August 25^th 2014.  The NPRM proposes a number of amendments to align the Hazardous Materials Regulations; 49 CFR Parts 171-180 (HMR) with the latest editions of the United Nations Model Regulations on the Transport of Dangerous Goods (18^th revised edition), the International Maritime Dangerous Goods Code (Amendment 37-14) and the International Civil Aviation Organization’s Technical Instructions on the Safe Transport of Dangerous Goods (2015-2016 edition). 

The comment period lasts until October 24, 2014. PHMSA’s goal is to ensure harmonization with the above regulations to coincide with their implementation from January 1, 2015.  PHMSA publishes the HM-215 series harmonization rule every two years to ensure that the HMR requirements are consistent with international standards and regulations.  If the amendments were not adopted in the HMR by January 1, 2015, the date most of the international standards above take effect, U.S. companies could be put at a competitive disadvantage in foreign markets because they would be forced to comply with a dual system of regulations.

PHMSA generally does a good job of maintaining consistency with international regulations although one could suggest that publishing the NPRM earlier would allow more time for comment and to incorporate comments into a final rule. On the current schedule the final rule is likely to be published in late December when many people are on holiday vacation and not allowing companies much time to adjust operations or train employees on the new requirements.  Nevertheless, International harmonization is a high priority for the agency. PHMSA has a very dedicated staff including Duane Pfund, Shane Kelley, Steve Webb, Vincent Babich,  Kevin Leary and Aaron Wiener.  These folks do an excellent job of representing the interests of the United States in international forums.

Comments on the proposals in the NPRM may be submitted through the Federal Rulemaking page: http://www.regulations.gov. All comments received will be posted for public display.

When developing the proposed amendments, PHMSA considers the changes to the HMR from the perspective of how the amendments impact public safety, international trade, facilitation of commerce and those engaged in transporting hazardous materials both domestically and internationally.  While the Hazmat Law requires PHMSA to harmonize, it provides the agency discretion to ensure that safety is not compromised.  On this basis, PHMSA does not need to incorporate every amendment adopted in international regulations.  Nevertheless, PHMSA staff recognize that safety is enhanced primarily because harmonized requirements simplify the complexity of the regulations, make training efforts less onerous, and decrease the likelihood of non-compliance.  The Model Regulations provide economic benefits by eliminating the costs of complying with a multitude of differing national, regional and modal regulations. The UN Model Regulations facilitate compatibility between modal requirements so that a consignment may be transported by more than one mode without intermediate reclassification, marking, labeling or repackaging.

Some of the more significant proposed amendments addressed in HM-215M include:

• Incorporation of revised international standards including the 2015–2016 ICAO TI,  (ICAO TI), Amendment 37–14 to the IMDG Code, IAEA Safety Standards for the Safe Transport of Radioactive Material, No. SSR–6, (IAEA Regulations), 2012 Edition, and the 18thRevised Edition of the UN Model Regulations, the Canadian TDGR to include Amendments 8, 9, 10 and 11 and the adoption of updated International Standards Organization (ISO) standards.
• Numerous amendments to the § 172.101 Hazardous Materials Table (HMT) to add, revise, or remove certain proper shipping names including entries for adsorbed gases, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, passenger and cargo aircraft maximum quantity limits will be added to the Hazardous Materials Table (HMT).  In additional there are many proposed amendments and addition of new special provisions.
• PHMSA is proposing to revise and add vessel stowage codes listed in column 10B of the HMT and segregation requirements in § 176.83 consistent with the IMDG Code. These changes would harmonize the HMR with the IMDG Code and would provide additional guidance on the loading and stowage of various materials. Additionally, the NPRM proposes to increase the required segregation distances between Division 4.3 dangerous when wet material (i.e. materials liable to give off a flammable or toxic gas in contact with water) and Class 3 flammable liquids and Division 2.1 flammable gases.
• An exception for environmentally hazardous substances including marine pollutants in quantities  not exceeding 5 Liters or 5 kilograms from the HMR in 171.4.
• Addition of new definitions in 171.8 including: Adsorbed gas directing users to § 173.115 for the definition, Bundle of cylinders, Large salvage packaging, Neutron radiation detector, Non-bulk packaging and Radiation Detection System.
• Minimum size requirements for OVERPACK and SALVAGE markings and changes for markings, labels, and placard specifications.  The NPRM  proposes to add minimum size requirements for the OVERPACK and SALVAGE markings. These markings would be required to be at least 12 mm high. There is no minimum size for these marks currently in the HMR.
• Revised the definition for non-bulk packaging by adding a new paragraph (4) to include bags and boxes if they have a maximum net mass of 400 kg (882 pounds) or less. The UN Model Regulations were revised to remove the volumetric limit for certain packaging types considered in Part 6 of the UN Model Regulations that would be considered non-bulk packagings under the HMR.
• Further harmonization of lithium battery requirements beyond what was adopted in the HM-224F final rule.  PHMSA is also proposing to harmonize with the latest version of the ICAO TI by requiring a ‘‘CARGO AIRCRAFT ONLY’’ label on packages containing small lithium metal batteries not packed in or with equipment.

There are proposed changes to 175.10 passenger exceptions which specify the conditions for which passengers, crew members, or an operator may carry hazardous materials aboard an aircraft. Consistent with revisions to the ICAO TI, paragraph (a)(11) which is applicable to passenger provisions for self-inflating life jackets is proposed to be clarified to indicate that a passenger is limited to one self-inflating safety device and in addition to two spare cartridges, and is requiring that both the safety device and spares be packed in such a manner that they cannot be accidently activated. Paragraph (a)(18)(iv) is proposed to be amended to clarify that articles containing lithium metal or lithium ion cells or batteries, with a primary function to provide power to another device, must carried as spare batteries. PHMSA is also proposing to revise paragraph (a)(24), applicable to small cartridges for other devices, by amending the phrase ‘‘small cylinders’’ to the more appropriate phrase ‘‘small cartridges,’’ and restricting the carriage of small gas cartridges to only those without a subsidiary risk.

The passenger notification of hazardous materials restrictions in 175.25 prescribes the notification that operators must provide to passengers regarding restrictions on the types of hazardous material they may or may not carry aboard an aircraft on their person or in checked or carry-on baggage. Consistent with revisions to the ICAO TI, it is proposed require all ticket purchases that notification must be presented at the point of ticket purchase, or if this is not practical, made available to passengers in another manner prior to the check-in process and for internet purchases, require that the final ticket purchase cannot be completed until the passenger or a person acting on the passenger’s behalf has been presented with this information, in addition to the existing requirement to indicate that they understand the restrictions on hazardous materials in baggage.  The intent is that passengers must see information on the types of hazardous material forbidden to be transported before proceeding with check-in because some airlines did not make this information readily accessible or placed it on web sites in areas that were not always visible to the passenger.

The docket itself can be found here: http://phmsa.dot.gov/hazmat/regs/rulemaking/nprm-anprm

Labelmaster will continue to stay abreast of regulation developments and provide updates as they happen. Labelmaster offers a variety of solutions for shippers of hazardous materials including labels, packaging, shipping guides and training. The fact that these new rules once adopted will be difficult to implement is an understatement.  Our experts can assist you in developing a compliance program, conducting compliance assessments, designing a training program, and developing standard operating procedures (SOPs) or job aides for your company.