PHMSA Issues Correction to 2009 Final Rule Amending HMR

The Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA) on Monday published in the Federal Register corrections to a Final Rule issued last January, in response to two appeals filed last year. Because Monday's amendments impose no new requirements, notice and public comment procedures are unnecessary, making effective date of the Final Rule January 4, 2010.

Last year's Final Rule, published in the Federal Register on January 14, 2009, revised the Hazardous Materials Regulations (HMR) [at 49 CFR Parts 100-185] in several ways, most notably by amending regulations relating to the transportation of batteries and battery-powered devices. Appeals were subsequently filed by Dangerous Goods Transport Consulting, Inc., and HMT Associates, Inc., both dealing with the shipment of fuel cell cartridges, as regulated by the 2009 Final Rule. Monday's corrections included a number of editorial changes and clarifying amendments to those sections of the HMR modified by the 2009 Rule.

Limited Quantity Exception
The appeal filed by Dangerous Goods Transport Consulting dealt with changes to 49 CFR §172.230(g) that prohibited the ‘limited quantities’ classification of fuel cell fuel cartridges when transported by air, but did allow identical materials to be called a ‘consumer commodity’ and be re-classified as 'other regulated materials-domestic' (ORM-D) in air transport. Additionally, similar quantities of the actual fuel can be shipped as ‘limited quantities’ when not contained in a fuel cell cartridge.

PHMSA acknowledges the inconsistency raised in the appeal, but noted that the harmonization of the HMR with international rules “promotes safety and facilitates international trade by minimizing the costs and other burdens of complying with multiple or inconsistent safety requirements. Thus, the benefits of a harmonized domestic and international transportation regime outweigh the costs that may be incurred.” 75 Fed. Reg. 64.

In yesterday's corrections, PHMSA also noted that the “ICAO Dangerous Goods Panel is currently considering adoption of limited quantity exceptions, based in part on a proposal from the U.S. Fuel Cell Council (FCC)”. 75 Fed. Reg. 64. If such a change is adopted as expected, PHMSA said that they would reconsider the ‘limited quantity’ exception in future rulemakings.

Multi-Modal Packing Requirements
The appeal filed by HMT Associates concerned the provision in 49 CFR 173.230(e) requiring intermediate packaging for fuel cell cartridges packed with equipment for all modes of transportation. HMT contended that this was inconsistent with international recommendations for shipping modes, other than for air. HMT further noted that the language in the 2009 rule's original notice of proposed rulemaking (NPRM) published on July 31st, 2008, did not contain the language applying the intermediate container restrictions to non-aviation transportation modes.

In yesterday's corrections notice, PHMSA agreed that the language objected to in HMT's appeal was consistent with neither the original NPRM language nor with international guidelines. PHMSA noted that they had intended the requirement for intermediate packaging of fuel cell cartridges packed with equipment be limited to packaging prepared for air transport consistent with the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO TI).

As a result, PHMSA has granted HMT's appeal. They are changing §173.230(e)(2)(i) and §172.230(f)(4) to fully align the fuel cell cartridges packaging requirements with the multimodal packing requirements prescribed in ICAO TI Packing Instructions 217 and UN Recommendations Packing Instruction P004. Additional clarifying changes are being made to §173.230, such as correcting the terminology in (f)(2) from ‘fuel cells’ to read ‘fuel cell cartridges.’