PHMSA Releases NPRM to Harmonize with International Standards

On November 27, 2018, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a Notice of Proposed Rulemaking (NPRM) aimed at amending certain provisions of the Hazardous Materials Regulations (HMR) that govern the transport of hazardous materials in the U.S. to harmonize with recent changes to various international standards and regulations including the International Maritime Dangerous Goods (IMDG) Code, the International Civil Aviation Organization’s (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air, and the United Nations (UN) Recommendations on the Transport of Dangerous Goods—Model Regulations.  Several changes are also proposed to further align the HMR with Transport Canada’s Transportation of Dangerous Goods (TDG) Regulations. Comments on the NPRM are due January 28, 2019.

Among the changes proposed in the NPRM are those pertaining to:

• The Hazardous Materials Table that appears in 49 C.F.R. 172.101 - these include additions, deletions, and revisions to certain proper shipping names, hazard classes, packing groups, special provisions, packaging requirements, stowage/segregation requirements, and aircraft quantity limits.   
  
• Articles Containing Dangerous Goods - PHMSA proposes to add a classification system for articles containing hazardous materials (hazmat) or hazmat residue that do not already have a proper shipping name.  Often such articles may not easily fit within typical hazmat packaging.  It is envisioned that these changes would help reduce the need for shippers to obtain specific approval from PHMSA prior to offering such items for transport.
  
• Lithium Batteries - PHMSA is proposing a variety of amendments that would apply to lithium batteries including:
  
  
  • The inclusion of a lithium battery test summary requirement which would include a standardized set of elements aimed at providing traceability and accountability to help ensure that lithium cell and battery designs offered for transport meet the appropriate UN tests. Manufacturers and subsequent distributers of lithium cells and batteries (including cells and batteries contained in a product) manufactured after June 30, 2003, would be required make this information available to downstream distributors, as well as the general public as soon as January 1, 2020.
  • The segregation of lithium batteries from specific hazardous materials, notably flammable liquids and electrically conductive materials, when offered for transport or transported on aircraft. If adopted, retailers and manufactures of lithium cells and batteries may need to change practices or operating procedures to ensure compliance.
  • An editorial amendment to the § 173.185(e) introductory paragraph to clarify that the ‘‘transported for purposes of testing’’ condition applies to prototype cells and batteries, and that both low production and prototype lithium cells and batteries may be contained in equipment.
  • A new ID number (3536), proper shipping name, and special provision (389) for lithium batteries installed in cargo transport units (CTU) – for example, racks/cabinets of batteries mounted in cargo transport units that provide power external to the CTU, such as temporary power sources.  It is envisioned that this may help reduce the need for shippers to obtain specific approval from PHMSA for such items. 
• Alternative Criteria for Classification of Corrosive Materials – the changes include provisions to allow for the use of bridging principles or a calculation method to make corrosivity classification and packing group determinations for mixtures when no physical test data are available for the mixture as a whole.  Note - although the new methods and terminology are more closely aligned with those found in GHS, there remains no provision to classify materials as corrosive based on pH under the HMR or the international standards and regulations regarding the transport of hazardous materials. 
  
• Provisions for Polymerizing Substances - PHMSA is proposing to extend the sunset dates for provisions concerning the transportation of polymerizing substances from January 2, 2019 to January 2, 2021.
  

Amendments Not Being Considered for Adoption in This NPRM: There are various amendments to the international standards that PHMSA is not currently proposing, including: fuel gas containment systems; severely damaged and defective lithium batteries; and road gas elements vehicles. However, PHMSA is seeking public comments on a Competency Based training approach that would make the currently flexible training requirements of § 172.700 much more formalized.

For assistance preparing comments to send to PHMSA, or for more information on the shipment of hazardous materials, please contact us:

Trent Doyle ( +1 202.434.4161), doyle@khlaw.com

Taylor Johnson (+1 202.434.4255), johnsont@khlaw.com