March 30, 2006
Docket Management System
US Department of Transportation
400 7th St. SW
Nassif Building, Room PL-402
Washington, DC 20590-0001
HM-215F Comments on Docket No. PHMSA – 2005-23141 (HM-215F); Hazardous Materials: Revision and Reformatting of Requirements for the Authorization To Use International Transport Standards and Regulations; Notice of Proposed Rulemaking
DGAC is a non-profit educational organization that promotes hazmat transportation safety by providing classroom training, seminars and conferences, and participation in domestic and international regulatory activities in its promotion of not only safe, but also efficient transportation of hazardous materials/dangerous goods in commerce.
General Comments
DGAC appreciates PHMSA’s objective of making the Hazardous Materials Regulations as they relate to international requirements more user friendly. Unfortunately, DGAC believes the proposed revisions to be less user friendly than the current requirements. DGAC members for the most part understand the current requirements as presented. DGAC is concerned that the proposed revision could lead to confusion and uncertainty in regard to the applicability of the international requirements, and suggests that instead of revising the regulations, development of guidelines may be a better means of helping those not already understanding the requirements. We prefer that the existing requirements only be amended to take into account the relatively few issues that the NPRM addresses that may be necessary in support of international uniformity.
DGAC believes the reorganization of the requirements will hamper compliance with the regulations. Currently, provisions outlining the additional requirements necessary to comply with each international regulation are in separate sections. This is the most convenient presentation. Users of the HMR normally are only interested in the additional requirements applying to requirements of one international body – not all three at one time. Consolidating the requirements forces the user to wade through numerous additional requirements not relevant to the particular international regulation of interest.
PHMSA has in the past taken a pragmatic perspective on the international regulations, recognizing that, while they are not word for word identical to the HMR, they provide an equivalent level of safety. On that basis PHMSA has in the past not sought to apply every minute discrepancy between the HMR and international requirements. Unfortunately, PHMSA now seems to be applying every additional HMR requirement to shipments offered for transportation in accordance with the international requirements. In the long run DGAC believes that this will hamper international trade in dangerous goods because it will complicate compliance and may encourage other countries to reciprocate and apply minutely differing requirements based on their own domestic regulations.
Section-by–Section Comments
DGAC’s comments section by section are as follows:
§171.7 DGAC supports the revisions to information incorporated by reference.
§171.11; 171.12 and 171.12a DGAC strongly opposes the deletion of these sections which are clear and serve the purpose of identifying the additional HMR requirements that must be met.
§171.22 DGAC finds that the proposed section is more complex than the existing text in §171.11, §171.12 and §171.12a and prefers that those paragraphs be retained. In addition DGAC has the following specific comments on parts of this new section:
§171.22(b). This section repeats what is proposed in §171.22(c). It is recommended that this section be deleted in favor of the text in §171.22(c) which is preferred.
§171.22(g)(4) DGAC strongly opposes the addition of this requirement to the regulations and recalls that the HMR previously applied a similar requirement to ICAO shipments. That requirement was subsequently converted to a permissive requirement in an earlier HM-215 rulemaking. Any justification for such a requirement has diminished over time with increasing harmonization between the HMR and international regulations. The distinction between what is an ICAO TI, IMDG Code or TDG shipment and what is an HMR shipment is not always clear. In many cases a shipment will be fully in compliance with the HMR and the international regulation. Is a shipment prepared in accordance with the IMDG Code but meeting all the requirements of the HMR an IMDG Code shipment? In other cases there will only be slight variations. For example, is a box bearing a label which conveys the hazard of the contents in a foreign language but meets the HMR in all other respects an IMDG Code shipment? Is a hazardous material offered for transportation in Germany in accordance with the IMDG Code and in a steel drum certified by BAM, the German test laboratory, an IMO shipment? DGAC also wonders who would be responsible for making the determination that the shipment is an ICAO, IMDG or TDG shipment in the case of an import shipment. The determination would most likely need to be made upon arrival in the US. It will be difficult to make this determination when the original foreign offeror has not made a point by point comparison of the HMR requirements and those of the international regulation. DGAC believes this proposed requirement is extremely burdensome. Further DGAC does not believe the burden hours required to comply with the requirement can be justified. DGAC strongly recommends deletion of the proposed requirement.
§171.22(g)(5) This paragraph appears to exceed the scope of §172.201(e) in that it applies the shipping paper retention requirement to a person who receives shipping papers. This is inconsistent with the requirements for domestic transportation. It is unclear why PHMSA would apply a more severe requirement in this case. In fact hazmat transportation law does not apply to consignees.
§171.22(h)(5) While not the same in every respect, the requirements in §§173.24 and 173.24a are similar to those in the international standards. Having to comply with the requirements in the international regulations and those in the two referenced sections applies an unnecessary additional level of regulation for export shippers. The proposal is contradictory in that it accepts the international requirements corresponding to §§173.24 and 173.24a for import shipments, and domestic shipments in accordance with the international regulations but not for export shipments. In addition there are instances where the requirements in §§173.24 and 173.24a are slightly more severe. For example, the IMDG Code permits the use of a slightly wider range of packages in some instances. In imposing these requirements on export shipments, PHMSA is making US shipments less competitive than shipments originating elsewhere. This is particularly troubling when US companies are competing in overseas markets. DGAC also finds it troubling that PHMSA did not identify this proposed change in the preamble and failed to provide its reasoning for the imposition of the requirements. The regulations are complex and failing to properly call changes to the public’s attention is less than fair notice. DGAC recommends deletion of this paragraph.
§171.22(h)(6) While not the same in every respect, the requirements in §173.28 are very similar to those in the international standards. DGAC considers it ludicrous to expect a foreign remanufacturer or reconditioner providing packages for a wide range of clientele to have to recondition or remanufacture a limited number of such packages bound for the US in accordance with §173.28. DGAC recommends deletion of this requirement.
§171.22(h)(7) DGAC believes this requirement is unnecessary and confusing. The registration requirements are not tied into the actual shipping requirements and there is no need to refer to registration in Part 171. §107.606(a)(6) excepts foreign domiciled offerors from the registration requirement. DGAC recommends deletion of this requirement.
§171.23(a) The term “non-DOT specification cylinder” is undefined and is confusing. It is assumed that the term applies to cylinders not marked “DOT” in accordance with Part 178. Certain cylinders manufactured to Canadian specifications are non-DOT cylinders but are currently authorized for use in the US. Further, under HM-220E, PHMSA has proposed to authorize UN cylinders and to some extent UN cylinders are already in use in the US under special permit. It is assumed that such cylinders are also “non-DOT cylinders”. For these types of “non-DOT cylinders” the proposed requirements are inappropriate.
It is not clear from the text that this proposed provision applies only to cylinders used for gases. Many liquid and solid hazardous materials (e.g., organometallic compounds) are shipped in cylinders as authorized by the UN Model Regulation and the IMDG Code, and there is no reason to believe that "foreign" cylinders comforming to these international standards are not suitable for this purpose. They provide a higher level of containment than drums or other packagings that may be authorized. Moreover, during the last UN biennium, DOT was a key player in the development of the new provisions to be implemented in the modal regulations in 2007 to facilitate the use of cylinders for liquid and solid hazardous materials (as prescribed, for example, in the new sub-section 4.1.3.6 in the UN Model Regulation and the corresponding provisions to be implemented under the IMDG Code and ADR/RID). DGAC assumes that DOT would support and recognize these new provisions; however, the proposed text would do just the opposite. DGAC recommends that the text clearly state that this proposed provision applies only to gases.
DGAC believes that for shipments remaining within a closed container within a single port area, it should not be necessary to have the importer certify the cylinder provides an equivalent level of safety as required in proposed §171.23(a)(2) The importer of a cylinder will seldom have the in depth knowledge needed to evaluate cylinder construction requirements to technically judge that a foreign cylinder provides an equivalent level of safety to a DOT specification cylinder. The proposed requirement is in excess of what is now authorized under §171.12(c) for no known reason. As written the requirement only applies to shipments entering the US under the IMDG Code. This proposed requirement should have been included in a section unique to the use of the IMDG Code.
§171.23(b)(3) A requirement simply indicating that the requirements of this subchapter apply is not user friendly. PHMSA should at a minimum direct the user to the applicable requirements.
§171.23(b)(5) DGAC considers it inappropriate to include a provision in the HMR stating a requirement of another regulation. This section could be included in a guidance document. DGAC recommends its deletion.
§171.23(b)(10) International regulations require that the basic description of a hazardous material on a shipping paper identify both the primary and subsidiary risks by class number. Section 172.203(m)(1) and the proposed requirement recognize the class number as providing sufficient indication that the material meets the criteria of a toxic substance. Given that primary and subsidiary risks are identified on shipping papers in accordance with international regulations for virtually all hazardous materials, DGAC questions the need to apply §172.203(m)(1) to international shipments. We recommend deletion of this paragraph.
Further, subparagraph (ii) would require limited quantities of Division 6.1 materials to be labeled, as generally required by the HMR. However, the HMR permit Division 6.1 PG III materials generally, and also PG II drugs and medicines, to be reclassed as ORM-D "Consumer Commodities", and, therefore, excepted from labeling. When exported, these materials are shipped as ORM-D to the port, then identified as "limited quantities" on IMDG Code shipping papers and further transported as limited quantities. The proposed new requirement will pose serious problems in the distribution of a number of critical materials. For example, a requirement to label packages of PG II and III drugs and medicines (e.g., chemotherapy drugs) with Division 6.1 labels will have an adverse impact on the distribution of these important life-saving materials.
§171.24(b)(1) A requirement that all applicable requirements of Parts 171 and 175 must be met is not user friendly. The referenced additional requirements in 14 CFR are air carrier requirements that do not apply to offerors and their inclusion only adds confusion.
§171.24(b)(2) DGAC fails to understand the rationale for applying an ICAO requirement when this section only applies to shipments being made in accordance with ICAO.
§171.24(c) It is clear in the current §171.11 that only the package is excepted from the HMR if it is in compliance with ICAO. It is unnecessary to make this statement. It also begs the question of what would apply in the case of a rail shipment since no requirements for rail are noted.
§171.24(d)(1)(i) This would be a new provision for batteries shipped in accordance with ICAO. Battery manufacturers outside the US would have to place additional markings on batteries being transported by air to the US while they would not be required to place such markings on batteries transported to the US under the IMDG Code or in accordance with the TDG. Only a very limited number of batteries are transported by air. DGAC questions why this new provision is necessary. Apart from being unnecessary, this provision, if adopted, will continue to promote confusion since the proposed use of the term "non-spillable" (which reflects current HMR usage in 173.159(d)) is in direct conflict with the use of that term in the ICAO TI. Under the ICAO TI a "non-spillable" battery is still regulated (see ICAO entry "Battery, wet,non-spillable" (UN 2800)). Under ICAO, the only difference between a battery required to be so described and a "spillable" battery is that the former is allowed to be transported in non-UN standard packaging. However, the package still must be marked "Battery, wet, non-spillable", UN 2800. Batteries excepted from regulation under the TI (in conformance with SP A67) are not so marked. Thus, the term DOT uses to describe a battery not subject to regulation, is the same term required by ICAO to be marked on packages containing batteries that are subject to regulation. As a minimum, DOT needs to alter its "non-spillable" marking requirement in 173.159(d) so as not to conflict with the use of that term in ICAO, UN and other regulations.
§171.25(c)(4) A recent interpretation (e.g., letter to Steptoe and Johnson dated September 7, 2005) suggests that if the carrier’s personnel are not present during unloading, the hazardous material is no longer in transportation, irrespective of whether the motive power unit remains attached. Clearly, based on HM-223 if the unit is not in transportation, DOT has no jurisdiction over the unloading. It would seem that further refinement of this requirement is needed to indicate that this requirement should only apply if the portable tank is still in transportation. With HM-223 limiting DOT jurisdiction in unloading situations, DGAC believes the relevance of the §177.834(o) to portable tanks must be seriously questioned. The vast majority of portable tanks are unloaded outside of DOT jurisdiction. The foreign offeror may not know whether a portable will be off loaded from a rail car, from a truck or placed on the ground for unloading. Requiring a foreign shipper to be aware of all the subtleties associated with whether a tank is being unloaded in transportation or out of transportation and know in advance all of the possible conditions under which the portable tank may be unloaded in the US is unreasonable, particularly when there is a low likelihood that tank unloading will even be subject to DOT regulations. While outside the scope of this rule, DGAC strongly recommends that PHMSA reconsider §177.834(o). It is inappropriate for DOT to place such requirements on a reusable packaging in international trade. It is nothing more than an attempt to maintain consistency between portable tank and tank truck unloading requirements. DOT has attempted to have these requirements adopted at the international level and the proposal was rejected by the UN Subcommittee. DGAC believes this requirement is a deterrent to intermodalism. DGAC notes that facilitating intermodalism is an objective of the Department’s strategic plan.
§171.25(d)(1) DGAC welcomes the proposed relief from placarding provided for combustible liquids traveling within a single port area prior to or after a vessel movement in accordance with the IMDG Code.
§171.26 DGAC welcomes the flexibility being proposed for the use of Canadian bulk packagings in the US. DGAC believes it to be PHMSA’s intent to authorize Canadian bulk packagings that are built to construction standards that closely correspond to, but are not identical to, construction standards of the HMR. However, PHMSA’s use of the term “equivalent” could be taken to mean that the Canadian bulk packagings must in all respects be the same as the packaging specified in the HMR. DGAC recommends clarification of the paragraph in this respect. Further DGAC questions the need for all the specificity provided. Paragraphs (ii), (iii) and (iv) are unnecessary. This paragraph is essentially only authorizing a Canadian bulk package for use in the US. A valid Canadian bulk packaging is one that is maintained and inspected in accordance with the TDG regulations. The paragraph does not provide relief from the requirements in Part 173 so that it is not necessary to reference them. DGAC does not believe Canadian provisions accepting US bulk packagings are as complex as proposed in this paragraph.
§171.27 DGAC supports the recognition of shipments meeting the IAEA requirements but questions the need to specifically reference the IAEA requirements in that they are integrated into both the ICAO TI and the IMDG Code.
§171.28(b) DGAC prefers the presentation of requirements in §171.12(e) over the manner in which the same requirements are presented in proposed §171.28(b).
§172.203(p) As stated previously in our comments on §171.22(g)(4) DGAC strongly opposes this new requirement. For an LTL carrier, it is possible for a single truck to contain shipments prepared in accordance with ICAO, the IMDG Code, the Canadian TDG and the HMR. Has PHMSA considered how this information would need to be transmitted as shipments are broken up and reconsolidated? DGAC questions the benefit of this proposed burdensome record keeping and information requirement and questions whether PHMSA has actually considered the burden hours associated with the proposed requirement.
§172.704(a)(2)(ii) DGAC understands that function specific training must include training on portions of the IMDG Code or ICAO TI if there is some relevance to the hazmat employee’s responsibilities. For example, we understand that training on the IMDG Code segregation requirements is needed for hazmat employees stuffing freight containers if they are doing so in accordance with the IMDG Code rather than the segregation requirements in the HMR. DGAC understood this to be the case without adding the proposed new text in §172.704(a)(2)(ii). It is unclear why PHMSA is compelled to propose this new clarification at this time. DGAC has found that the addition creates confusion on the degree to which hazmat employees may require training and is particularly concerned that enforcement personnel may insist on complete training on the international regulations should the proposed change be adopted. This may be another point that can best be clarified through guidelines.
§173.24(c)(2) The current regulation allows a US offeror to use a packaging that is authorized under the ICAO TI, the IMDG Code and the TDG. The proposed amendment would prohibit the US offeror from using these packagings for an export shipment and for domestic transportation not in accordance with the IMDG Code or the ICAO TI. DGAC does not agree with this change. Certainly, there can be no safety basis for the change as foreign shippers may use packages authorized by ICAO, IMO or TDG to ship into the U.S. In making this change PHMSA is placing US industry at an economic disadvantage to foreign shippers who will be able to use a wider variety of packages than US shippers. Moreover, DGAC believes this to be a very subtle change that should have been called out in the preamble with PHMSA’s justification clearly provided.
§173.24(i) It is unclear why PHMSA is proposing to amend this section to except packagings from §173.27 when packages are transported under ICAO. The current §171.11 text as well as the proposed §171.24 (although less clearly) except ICAO shipments from the requirements in Part 173. Specifically excepting ICAO packages from this requirement raises the question of whether ICAO packages are excepted from other provisions in Part 173 not specifically mentioned.
The Dangerous Goods Advisory Council (DGAC) appreciates the opportunity to submit the above comments and requests careful consideration of their merits. In view of the large number of issues raised, DGAC requests that PHMSA convene a public meeting to discuss these comments in greater detail.
Sincerely,
Michael Morrissette
President
