PHMSA accepts appeals

The US Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) issued two revisions to recent final rules at the end of 2011.The first of these, published on December 28, related to the HM-218F final rule issued on July 20, 2011, which made miscellaneous amendments to the Hazardous Materials Regulations (HMR). Four appeals were lodged, which are addressed in these latest changes.

The July 2011 final rule included a change resulting from a petition from the Association of American Railroads (AAR) that shipping papers for consignments of non-odorised LPG should include a notation so as to alert emergency responders. In its notice of proposed rulemaking (NPRM) for HM-218F issued in September 2010, PHMSA proposed to include this requirement and there were no adverse comments. However, subsequent to the final rule, the Dangerous Goods Advisory Council (DGAC) submitted an appeal, asking for a delayed compliance date and greater latitude in the wording used. 

PHMSA agrees with DGAC’s appeal and has put back mandatory compliance with the new provisions in §172.203(p) until August 19, 2012. At the same time, it is correcting the final rule to clarify that the words ‘not odorized’ or ‘non-odorized’ may be used and must be “in association” with the proper shipping description, rather than precede the proper shipping name as originally specified.

The final rule made some changes to the infectious substance label, removing the text that refers to the Centers for Disease Control (CDC), and to the Class 9 label, removing the thin horizontal line running across the middle of the label to align with international provisions. 

The Council on Safe Transportation of Hazardous Articles (COSTHA) appealed this section of the final rule, pointing out that any text in the label should be below the centre line and also that the illustration of the Class 9 label showed an incorrect arrangement of vertical bars. The compliance date for these changes has already been amended in the September 2011 final rule under docket HM-244D (HCB October 2011, page 18). PHMSA has agreed with COSTHA’s other points and made the necessary amendments.

The July 2011 final rule included an amendment to §175.10(a)(17) to indicate that the batteries of battery-powered mobility aids do not need to be disconnected prior to transport by aircraft, in order to harmonise with the requirements of the International Civil Aviation Organisation’s (ICAO) Technical Instructions. DGM USA appealed this, noting that many batteries cannot be removed in any case and asking that PHMSA fully adopt the ICAO language in order to reduce the complexity. PHMSA believes the request has merit but feels it is outside the scope of the current amendment; it will address it in a separate rulemaking.

Two other editorial amendments are included in the December 28 changes, which can be found online at www.gpo.gov/fdsys/pkg/FR-2011-12-28/pdf/2011-33193.pdf.

The second, lengthier set of corrections appeared on December 30 as a final rule responding to administrative appeals to the international harmonisation rule published as HM-215K on January 19, 2011. The latest rule also provides some clarification and corrects some minor and typographical errors.

Perhaps the most useful item in the December 30 rule is a summary of the changes relating to the new limited quantity mark and the phasing out of the ORM-D system for domestic shipments. In brief, this states:

(a) shippers may continue to rename a limited quantity hazardous material as ‘Consumer commodity, ORM-D’ until December 31, 2013;

(b) as from January 1, 2014, the ‘Consumer commodity’ proper shipping name will no longer be authorised, except for those eligible and prepared for shipment by aircraft in accordance with §173.167 and using the newly adopted ID8000 identification number; such packages must be marked with the new limited quantity mark carrying the ‘Y’ in the middle;

(c) until December 31, 2012, ORM-D-AIR shipments may continue to be prepared and packaged in accordance with the requirements of §173.27 in effect on October 1, 2010;

(d) shippers may continue to display the square-on-point marking with identification number(s) to denote dangerous goods in limited quantities until December 31, 2013; such consignments must be prepared in accordance with §172.315 in effect on October 1, 2010;

(e) as from January 1, 2014, only the new limited quantity mark – the square on point with the top and bottom portions black – may be used for modes of transport other than air; and

(f) for air transport, the new limited quantity mark – as above but with a ‘Y’ in the centre – must be used as from January 1, 2013.

During the changeover period, a limited quantity package may carry either the old ORM-D mark or the new mark, but not both. Whichever is used, the relevant conditions must be met: if the new mark is used, the current requirements prevail.

The Association of Hazmat Shippers (AHS) has appealed to PHMSA to include a limited quantity exception for UN 3230 self-reactive solids; currently, Division 4.1 self-reactive substances are not authorised for shipment with limited quantity exceptions in the HMR, despite there being allowances for certain such substances in the UN model regulations. PHMSA says it recognises the merits of the AHS appeal but that it will be addressed in a separate rulemaking.

On the other hand, an administrative appeal by the Fuel Cell and Hydrogen Energy Association (FCHEA) that fuel cell cartridges should be carried under the ORM-D provisions by air was denied; PHMSA says this would no longer communicate the risk posed by the substance or article. However, FCHEA also pointed out that revisions to the ICAO Technical Instructions in recent years have put HMR out of step with the general provisions for the carriage of fuel cells by air and PHMSA has made an editorial revision to §175.10(a)(19).

The full text of the December 30 rule, which includes a handy chart explaining the changeover process for ORM-D and limited quantities, can be found on the PHMSA website at www.gpo.gov/fdsys/pkg/FR-2011-12-30/pdf/2011-33358.pdf.