The Pipeline and Hazardous Materials Administration (PHMSA) published a Notice of Proposed Rulemaking (NPRM) in the U.S. Federal Register today addressing appeals that resulted from recent harmonization rules HM-215K and HM-231, both of which dealt with hazmat packaging requirements. Companies should examine the NPRM carefully and work with their respective trade organizations to ensure that PHMSA receives the information it needs to publish a reasonable and practical final rule.
HM-215K included amendments that were necessary to align the Hazardous Materials Regulations (HMR) with international standards for the transport of hazardous materials by all modes. In today’s notice, PHMSA proposes to amend the HMR as a result of various administrative appeals submitted in response to several amendments adopted in the January 19, 2011, final rule. The NPRM also addresses recent actions taken by the International Civil Aviation Organization’s (ICAO) Dangerous Goods Panel (DGP) regarding certain lithium ion battery-powered mobility aids (e.g., wheelchairs, travel scooters) offered by passengers for air transport. Unfortunately, there have already been concerns raised by members of the ICAO Dangerous Goods Panel regarding whether the mobility aid issue was appropriately addressed. Further, the NPRM proposes amendments to the HMR as a result of two administrative appeals submitted to the HM-231 final rule published on February 2, 2010, that revised shipper responsibilities related to packaging design variation, manufacturer notification, and recordkeeping requirements for certain packaging types. Comments to today’s NPRM must be received by July 24, 2012.
The following, taken from the notice, examine issues addressed in the NPRM:
Phase-Out of the ORM–D System
In HM-215K, PHMSA recently revised the HMR to retire its system of reclassing and transporting limited quantity material as ORM–D. HM-215K amended the HMR by phasing out the ORM–D system for material transported by aircraft beginning January 1, 2013, and for material transported by all other modes of transportation (e.g., motor vehicle) starting January 1, 2014. The American Coatings Association (ACA) and Healthcare Distribution Management Association (HDMA) appealed PHMSA’s decision to phase out the ORM–D system, arguing that PHMSA did so “without any debate or consideration of the type of materials that use this exception; the costs incurred by the regulated community; and the safety benefits,” according to today’s notice. ACA claimed that many companies and organizations, including themselves, asked for a separate rulemaking to address these issues. They also asked for a 10-year transition period for phasing out ORM-D requirements. HDMA provided cost data related to its unique practice of reusing totes permanently embossed with the ORM–D marking. In response to the comments, PHMSA stated that allowing dual systems for communicating packages of limited quantity material would likely cause confusion and place unreasonable burdens on carriers and shippers to train their hazmat employees to recognize and comply with both systems. PHMSA stated that it supports a single global system for the transportation of limited quantity material that will greatly improve safety and efficiency by decreasing potential delays and confusion during transportation and by removing the burden of providing training in dual systems. Recognizing the need to provide sufficient time for domestic shippers and carriers to adjust to the revised system, PHMSA is proposing to authorize the continued use of packagings marked “Consumer commodity, ORM–D” until December 31, 2015 for domestic highway, rail and vessel transportation.
Overpacks Containing Limited Quantity or ORM–D Material
In HM-215K, PHMSA revised the regulation for overpacks (as defined in § 171.8) by requiring the “OVERPACK” marking on an overpack containing packagings including the limited quantity packaging if all markings are not visible. The Dangerous Goods Advisory Council (DGAC) expressed concern over the manner in which the language in the requirement was phrased, and stated that it implies all markings on each packaging in the overpack must be visible. DGAC noted that the requirement was not really harmonized with the UN Model Regulations which states that the overpack “shall be marked with the word ‘OVERPACK’ and the marking required by this Chapter unless the markings representative of all dangerous goods in the overpack are visible.” In the preamble to the notice, PHMSA provides a clarification and interpretation that is very critical to many companies.
“The HMR do not currently require that every individual mark (or label) on each package contained in an overpack be visible. For example, as stated in § 173.25(a)(2), an overpack must be marked with the proper shipping name and identification number (when applicable) for each hazardous material contained in the overpack, unless marking and labels representative of each hazardous material in the overpack are visible.”
This interpretation applies to any overpack, not just those with limited quantities. PHMSA recommends that where packages are stacked and/or banded on a pallet as part of an overpack, the packages should be positioned, when possible, so that the markings and labels are visible on the outside of the overpack. However, this does not mean that every package marking (or label) must be visible or the overpack must be marked accordingly.
With regard to the “OVERPACK” marking requirement for overpacks containing limited quantity and ORM packages, in the NPRM, PHMSA states that they are accepting DGAC’s appeal and are proposing to revise § 173.25(a)(6) to clarify that not all limited quantity and ORM markings must be visible, and that the marking requirement is only applicable to the limited quantity and ORM mark itself. Additionally, a new § 173.25(a)(7) is proposed to be added for clarity to separate limited quantity and ORM overpack marking requirements from excepted quantity overpack marking requirements.
Use of the Square-On-Point and ID Number Limited Quantity Marking
Prior to the HM-215K final rule, § 172.315 excepted for other than transportation by aircraft, a package containing a limited quantity substance or article from being marked with the proper shipping name if it was marked with a square-on-point containing the UN number. Several entities, including DGAC, appealed the one-year transition period that was provided to authorize continued use of this marking before the revisions to the limited quantity markings become effective. They stated the one-year transition period does not allow sufficient time to deplete stock(s) of packagings pre-printed with the square-on-point mark containing the ID number and requested an extension of three- to five-years. Specifically, ACA requested a three- to five-year timeframe while DGAC and PPG ask for a three-year timeframe. The appellants also pointed out that this alternative limited quantity marking communicates more information than the newly adopted markings or the original ORM–D markings. They stated that PHMSA already provides for a two- to three-year transition period for the phase-out of the ORM–D marking, depending on the mode of transportation. They also requested, for clarification, that any transition periods be included in § 171.14 (transitional provisions) and § 172.300 (marking applicability).
PHMSA states in the notice that it agrees that shippers should be provided with the same transition period to continue using the square-on-point mark containing the UN number that was provided for the continued use of the ORM–D marking(s). PHMSA notes that they already granted the appeals submitted by ACA and DGAC and revised § 172.315 accordingly to extend the transition period to December 31, 2013, and also authorized, for domestic air transportation, use of the square-on-point mark containing the UN number to continue until December 31, 2012. Nevertheless, in the NPRM PHMSA is proposing that, other than for air transportation, continued use of the square-on-point mark containing the UN number be authorized until December 31, 2015.
Consumer Commodity By Air
In HM-215K, PHMSA adopted requirements for certain consumer commodities intended for transportation by aircraft in a new section § 173.167. The new description and identification number (ID8000) are consistent with the consumer commodity entry in the ICAO Technical Instructions in Packing Instruction Y963. In its appeal submitted in response to the final rule, DGAC expressed concerns that the alignment between the two standards was not consistent. For example, DGAC pointed out that absorbent material requirements and stack test criteria were not included in the § 173.167 packaging section. In the NPRM, PHMSA states that DGAC is correct in relation to the inconsistencies and, therefore, granting DGAC’s administrative appeal and proposing to revise § 173.167 accordingly. This is yet another example of the value that membership to a trade organization such as DGAC provides to those in the hazardous materials transportation community.
Fuel Cell Cartridges Transported in Passenger Checked Baggage
In the HM-215K final rule, PHMSA revised the 49 CFR 175.10 passenger exceptions to allow passengers and crew members to place certain spare fuel cell cartridges containing a flammable liquid (Class 3) or corrosive material (Class 8) in checked baggage. They limited the scope of fuel cell cartridge chemistries allowed in checked baggage by excluding fuel cell cartridges containing Divisions 2.1 (flammable gas) and 4.3 (dangerous when wet) material. This was inconsistent with the ICAO Technical Instructions, as ICAO only restricts spare fuel cell cartridges containing Division 4.3 material from checked baggage. PHMSA believed (most likely based on FAA pressure) that the prohibition should include spare cartridges containing Division 2.1 materials because flammable gases are generally prohibited from transportation on passenger-carrying aircraft as cargo (Editorial Note: Perhaps they did not consider butane-powered curling irons). Two appellants requested that PHMSA revise § 175.10 to align with the ICAO Technical Instructions and allow spare fuel cell cartridges containing Division 2.1 flammable gas to be carried in checked baggage.
PHMSA states that they are granting the appeal for reconsideration of the issue by providing additional opportunity for public comment until July 24, 2012, for the limited purpose of gathering information to determine whether or not to allow fuel cell cartridges containing Division 2.1 flammable gas to be carried aboard a passenger-carrying aircraft in checked baggage. Any guess to what the pilots will say?
Incident Reporting for Limited Quantity Material
The incident reporting requirements in the HMR allow for exceptions for ORM-D Materials. ACA indicated in its appeal that the reporting requirements, as they apply to limited quantity material, should be reviewed based on the eventual phase-out of the ORM–D hazard class and suggested the exception for ORM–D material should be extended to limited quantity packagings. In the NPRM, PHMSA states that they agree with ACA that relief from incident reporting should apply to limited quantities except for Class 7 (radioactive) limited quantity materials, instruments, and articles due to the unique nature of the hazard and because this type of material was never authorized to be reclassed and transported as ORM–D and for air transport.
Materials of Trade
The materials of trade (MOTS) exceptions of the HMR allow certain hazardous material articles and substances, including ORM–D, to be transported by motor vehicle as part of a business operation under less regulation. In the NPRM, PHMSA recognizes that they did not appropriately amend the materials of trade exceptions to reflect the eventual phase-out of the ORM–D system. PHMSA proposes to extend the MOTS exceptions to limited quantity packages consistent with the exception provided to ORM–D material. They, however, are not proposing to extend the exception to limited quantities of Division 4.3 (dangerous when wet) liquid material or Class 7 (radioactive) material, instruments or articles due to the unique nature of the hazards and because these materials were never authorized to be reclassed and transported as ORM–D. Additionally, PHMSA is proposing to clarify that exceptions for limited quantity material also include those authorized under § 173.63 for certain Division 1.4S explosives and § 173.306 for compressed gases.
Based on a few conflicting interpretations issued by PHMSA with respect to fire extinguishers, the agency is proposing to clarify the requirements in § 173.309. In the NPRM, PHMSA is proposing to revise the entire section for clarity and to add regulatory text from § 172.102(c)(1)(18) to prescribe the conditions when specification cylinders may be described, offered and transported in commerce as fire extinguishers. PHMSA is soliciting public comment on whether they should consider allowing UN specification cylinders as fire extinguishers in § 173.309. Lastly, they are proposing to revise paragraph (b) by excepting a limited quantity package of fire extinguishers from shipping papers when transported by highway or rail if marked in accordance with § 172.315. This would be provided in addition to the existing HMR exceptions from labeling (unless offered for transportation by aircraft), placarding, Part 174 and Part 177 for limited quantity packages of fire extinguishers.
Recent Changes to Part 8 of the ICAO Technical Instructions (Mobility Aids)
HM-215K merged applicable provisions for the transportation of lithium ion battery-powered mobility aids into a new § 175.10(a)(17). At the time, PHMSA stated that removal of the battery may be necessary based on results of the required visual inspection or if the mobility aid was to be offered to the operator as checked baggage. PHMSA is clarifying that it was not their intent to require an operator or passenger to remove a properly secured lithium ion battery from a mobility aid that was not specifically designed to allow its batteries to be removed. They are also clarifying that it is the responsibility of the operator to determine if the wheelchair or other mobility aid is designed to have its battery removed by the user, and that information provided by the user or visual inspection may be used in this process. Previously the HMR did not require batteries to meet the UN38.3 test requirements.
The statement “designed to be removed” is somewhat subjective and can be interpreted widely. Any battery can be removed with some effort. Even if there were such devices, is it really in the best interest of safety to place these in the passenger cabin? Where would they fit? Generally, the standard practice is to stow them in the hold properly identified with the passenger’s information and special handling instructions. You also wouldn’t want to see one coming around the baggage carousel. The issues surrounding spare batteries in the cargo hold are also not necessarily comforting.
Given the latest requirements in the ICAO Technical Instructions regarding lithium battery shipments, some of these batteries are already forbidden on passenger aircraft. This is a complex issue that will not be easy to solve. An industry representative said that carriers have already started developing programs to handle batteries removed from equipment, adding that he believed the best course of action is not to remove the batteries at all.
COSTHA is concerned that such a practice goes against the Air Carrier Access Act (14 CFR 382). In the notice preamble, it appears PHMSA is attempting to address the issue but it is probably one that will receive a significant number of comments.
In the NPRM, PHMSA responds to administrative appeals submitted in response to HM-231. The final rule revised recordkeeping requirements in § 173.22 for shipper retention of manufacturer notification (including closure instructions) and required shippers to maintain a packaging’s manufacturer notification (including closure instructions) for 365 days subsequent to offering the package for transportation. The final rule also revised § 178.2(c) to strengthen manufacturer notification requirements and to allow them greater flexibility in how they provide the notification. The final rule was effective on October 1, 2010. DGAC appealed the rule, requesting that PHMSA delay the effective date of the final rule for two years to provide sufficient time for packaging manufacturers. The DGAC appeal was denied but PHMSA did agree that aligning the review and preparation of a packaging’s manufacturer notification with its periodic retest merited consideration because it would facilitate the packaging manufacturer’s and distributor’s compliance.
In a September 30, 2010 final rule, PHMSA revised the recordkeeping requirement from 365 days to a two-year period for combination packagings and a one-year period for single packagings consistent with a typical packaging design’s periodic retest frequency. Nevertheless, DGAC stated that PHMSA’s actions did not grant the extension of the effective date and, instead, created a recordkeeping requirement of two years that is more difficult to comply with than the original one-year (365-day) requirement in HM-231. DGAC claimed there is no need for a shipper to retain a copy of a packaging’s manufacturer notification (including closure instructions) for longer than 365 days.
In the NPRM, PHMSA states that they are denying DGAC’s appeal to extend the effective date of the rule. However, they are proposing to amend § 178.2(c)(1)(ii) of the HMR based on DGAC’s request to revert back to the original recordkeeping retention duration for manufacturer notification to the 365-day period adopted in HM-231. Additionally, PHMSA is proposing to amend § 173.22(a)(4)(ii) by requiring a shipper to retain manufacturer notification (including closure instructions) for a period of 90 days once a package is offered to the initial carrier for transportation in commerce.
PHMSA is also proposing to clarify that only bulk packagings and cylinders manufactured according to Part 178 of the HMR are excepted from the manufacturer notification (including closure instructions) retention requirements specified in § 173.22(a)(4) if such information is permanently embossed or printed on the packaging. This statement is confusing in light of the fact that PHMSA issued an interpretation (see Ref #07-0204, Jan 8, 2008) stating that closure instructions are not required for cylinders.
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Should you have questions about these new regulations and how they might affect your shipping processes, please contact the Labelmaster Services team at 866-655-5539.