# Hazardous Materials: Modernizing Regulations To Improve Safety and Efficiency

- **operation:** document
- **citation:** 88 FR 43016
- **title:** Hazardous Materials: Modernizing Regulations To Improve Safety and Efficiency
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** proposed
- **official:** true
- **published on:** 2023-07-05
- **effective on:** Not available
- **summary:** PHMSA is publishing this ANPRM to solicit stakeholder feedback on initiatives PHMSA is considering that may modernize the Hazardous Materials Regulations and improve efficiencies while maintaining or improving a current high level of safety. To fully engage with stakeholders, this ANPRM solicits comments and input on questions related to 46 distinct topics under consideration. Any comments, data, and information received will be used to evaluate and potentially draft proposed amendments.
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Federal Register, Volume 88 Issue 127 (Wednesday, July 5, 2023) [Federal Register Volume 88, Number 127 (Wednesday, July 5, 2023)] [Proposed Rules] [Pages 43016-43047] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2023-13903] [[Page 43015]] Vol. 88 Wednesday, No. 127 July 5, 2023 Part II Department of Transportation ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration ----------------------------------------------------------------------- 49 CFR Parts 171, 172, 173, et al. Hazardous Materials: Modernizing Regulations To Improve Safety and Efficiency; Proposed Rule Federal Register / Vol. 88 , No. 127 / Wednesday, July 5, 2023 / Proposed Rules [[Page 43016]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, 174, 175, 176, 177, 178, 179, and 180 [Docket No. PHMSA-2019-0031 (HM-265A)] RIN 2137-AF47 Hazardous Materials: Modernizing Regulations To Improve Safety and Efficiency AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). ACTION: Advance notice of proposed rulemaking (ANPRM). ----------------------------------------------------------------------- SUMMARY: PHMSA is publishing this ANPRM to solicit stakeholder feedback on initiatives PHMSA is considering that may modernize the Hazardous Materials Regulations and improve efficiencies while maintaining or improving a current high level of safety. To fully engage with stakeholders, this ANPRM solicits comments and input on questions related to 46 distinct topics under consideration. Any comments, data, and information received will be used to evaluate and potentially draft proposed amendments. DATES: Comments must be received by October 3, 2023. However, PHMSA will consider late-filed comments to the extent possible. ADDRESSES: You may submit comments identified by the docket number PHMSA-2019-0031 (HM-265A) by any of the following methods: Federal eRulemaking Portal: https://www.regulations.gov . Follow the online instructions for submitting comments. Fax: 1-202-493-2251. Mail: Docket Management System, U.S. Department of Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, Ground Floor, Room W12-140 in the West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. Instructions: All submissions must include the agency name and docket number (PHMSA-2019-0031) or RIN 2137-AF47 for this ANPRM at the beginning of the comment. Note that all comments received will be posted without change to https://www.regulations.gov including any personal information provided. If sent by mail, comments must be submitted in duplicate. Persons wishing to receive confirmation of receipt of their comments must include a self-addressed stamped postcard. Docket: For access to the dockets to read background documents or comments received, go to https://www.regulations.gov or DOT's Docket Operations Office; see ADDRESSES. Confidential Business Information: Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this ANPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this ANPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as ``PROPRIETARY.'' Submissions containing CBI should be sent to Eamonn Patrick, Standards and Rulemaking Division, Office of Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590-0001. Any commentary that PHMSA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking. FOR FURTHER INFORMATION CONTACT: Eamonn Patrick, Standards and Rulemaking Division, Office of Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, at 202-366-8553. SUPPLEMENTARY INFORMATION: Abbreviations and Terms A4A Airlines for America AAR Association of American Railroads ACA American Coating Association ACC American Chemistry Council AEI Automatic Equipment Identification AFFTAC Analysis of Fire Effects on Tank Cars AFPM American Fuel and Petrochemical Manufacturers AHS Association of Hazmat Shippers ANPRM Advanced Notice of Proposed Rulemaking ANSI American National Standards Institute APA American Pyrotechnic Association API American Petroleum Institute ASTM American Society for Testing and Materials ATA Air Transport Association CA Competent Authority CSC Convention for Safe Containers COSTHA Council on the Safe Transportation of Hazardous Articles CT-number Cargo tank registration number DCE Design Certifying Engineer DDR Damaged, Defective or Recalled DGL Dangerous Goods List DGTA Dangerous Goods Trainers Association DOT Department of Transportation EDI Electronic Data Interchange E.O. Executive Order EPA Environmental Protection Agency ERG Emergency Response Guidebook ERI Emergency Response Information EX number Explosives approval number FC number Consumer fireworks approval number FMCSA Federal Motor Carrier Safety Administration FMVSS Federal Motor Vehicle Safety Standards FRA Federal Railroad Administration HHFT High Hazard Flammable Train HMR Hazardous Materials Regulations HMT Hazardous Materials Table IBC Intermediate Bulk Container IBR Incorporation by Reference ICAO TI International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air IMDG Code International Maritime Dangerous Goods Code IMO International Maritime Organization IPANA Industrial Packaging Alliance of North America ISO International Standards Organization IT Information Technology LTD QTY Limited Quantity IVODGA International Vessel Operators Dangerous Goods Association MAWP Maximum Authorized Working Pressure NAAHAC North American Automotive Hazmat Action Committee NBIC National Board Inspection Code NEW Net Explosive Weight NOPIC Notification of Pilot in Command NOTOC Notification of the Captain NTSB National Transportation Safety Board NTTC National Tank Truck Carriers OMB Office of Management and Budget ORM-D Other Regulated Material-D PG Packing Group PHMSA Pipeline and Hazardous Material Safety Administration PIH Poisonous by Inhalation POP Performance Oriented Packagings PRBA Rechargeable Battery Association PRD Pressure Relief Device RCRA Resource Conservation and Recovery Act RVP Reid Vapor Pressure RI Registered Inspector RIPA Reusable Industrial Packaging Association RP Recommended Practice RRTF Regulatory Reform Task Force RSPA Research and Special Programs Administration SAAMI Sporting Arms and Ammunition Manufacturers Institute [[Page 43017]] TC TDG Transport Canada Transportation of Dangerous Goods regulations UN United Nations USCG United States Coast Guard USWAG Utilities Solid Waste Activities Group Table of Contents I. Executive Summary II. Objective III. Topics Under Consideration A. Evaluation of Carrier Maintenance of Emergency Response Information B. Non-Bulk Packaging, Intermediate Bulk Container, and Large Packaging Periodic Retest Extension C. Use of Non-Bulk Package Test Samples for Multiple Tests D. Aerosol Classification Alignment E. Residue IBC Exceptions F. Requirements for Damaged, Defective, or Recalled Lithium Cells and Batteries G. Sampling and Testing Program for Unrefined Petroleum-Based Products H. Basic Oil Spill Response Plan Applicability I. Standards Incorporated by Reference Update J. EX-Number Display Requirements K. Section 173.150 Ethyl Alcohol Exception L. Limited Quantity Training Exception M. Exceptions for Small Quantities of Division 4.3, PG I Material N. Recycling Safety Devices O. Creation of Basic Description and Shipping Description Definitions P. Removal of the 60-Day Renewal Requirement for Approvals and Special Permits Q. Design Certifying Engineer Experience R. Oxidizing Gases by Air S. Part 176 Vessel Requirements Update T. LTD QTY Shipping Paper Exception by Vessel U. Convention for Safe Containers Data Plate and Inspection Requirements V. Identification of Freight Containers in Rail Transportation W. Exceptions for Rail Transport of Lithium Batteries for Purposes of Recycling and Disposal X. Tank Car Manway Inspections Y. Acid Resistant Manways for DOT 111A100W5 Tank Cars Z. Tank Car Thermal Protection Standard AA. Unoccupied Locomotive Train Placement BB. Offering a Tank Car After Qualification Expiration CC. Non-Destructive Examination DD. Updating Requirements for Transporting Hazardous Materials on Passenger Carrying Motor Vehicles EE. EPA 27 Test Method for Cargo Tanks FF. Mounting Pads for Cargo Tank Damage Protection Devices GG. Cargo Tank Hydrostatic Test Medium HH. Cargo Tank Thickness and Corrosion Inspection Requirements II. Remove Exceptions for Cargo Tank Inspections JJ. Segregation of Detonating Explosives for Highway Transportation KK. Cargo Tank Reflectivity LL. Cargo Tank Registered Inspector Training and Qualification MM. Cargo Tank Design Certifying Engineer Training and Qualification NN. Cargo Tank Registered Inspector Verification and Documentation OO. Cargo Tank Design Certifying Engineer Verification and Documentation PP. Cargo Tank Registered Inspector Revised Definition QQ. Cargo Tank Design Certifying Engineer Revised Definition RR. NTSB Safety Recommendations R-20-1 to R-20-4 SS. Placard Display on Intermediate Bulk Containers TT. Emerging Technologies I. Executive Summary PHMSA, in consultation with its modal partners, is publishing this ANPRM to solicit stakeholder input on initiatives PHMSA is considering that may modernize its Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) in order to improve hazardous material transportation efficiency, improve transparency and stakeholder engagement, and better accommodate technological innovations--all while maintaining or improving public safety and environmental impacts. PHMSA regularly reviews HMR requirements to ensure that the regulations continue to serve a useful safety purpose. In accordance with executive order (E.O.) 12866,\1\ PHMSA periodically reviews the HMR, and constantly seeks input from the public in the form of regulatory petitions, to ensure that the regulations improve the health, safety, and well-being of the American public without unreasonable costs on society. --------------------------------------------------------------------------- \1\ 58 FR 51735. --------------------------------------------------------------------------- On October 2, 2017, the Office of the Secretary of Transportation, consistent with E.O.s 12866, 13771, 13777, and 13783,\2\ published a notice in the Federal Register \3\ titled ``Notice of Regulatory Review'' inviting the public to provide input on existing rules and other agency actions that are good candidates for repeal, replacement, suspension, or modification. Many of the regulatory reform topics discussed in this ANPRM were originally received as comments to the October 2017 notice (hereinafter referred to as the ``2017 Regulatory Reform Notice''). --------------------------------------------------------------------------- \2\ Please note that E.O.s 13771 (82 FR 9339), 13777 (82 FR 12285), and 13783 (82 FR 16093) were revoked by E.O. 13990 (86 FR 7037) on January 21, 2021. \3\ 82 FR 45750, https://www.regulations.gov/docket?D=DOT-OST-2017-0069 . --------------------------------------------------------------------------- PHMSA periodically revises the HMR based on changing economic, technological, and safety conditions. Moreover, PHMSA addresses requests to add, amend, or delete a regulation from diverse stakeholders through our petition process (see Sec. Sec. 106.95- 106.105). PHMSA also regularly reviews special permits (documents that permit activities not otherwise allowed under the HMR provided the applicant is able to demonstrate it will maintain an equivalent level of safety) and adopts the provisions of special permits with broad potential applicability and satisfactory safety records into the HMR for general use. Additionally, PHMSA participates in the development of international standards for the transportation of hazardous materials, including the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO TI), the International Maritime Dangerous Goods Code (IMDG Code), and the UN Recommendations on the Transport of Dangerous Goods--Model Regulations. PHMSA updates the HMR biennially to reflect the most recent changes in these and other international regulations to maintain harmonization with international requirements and facilitate international commerce. PHMSA has addressed many of the comments to the 2017 Regulatory Reform Notice regarding the subject of hazardous materials transportation regulation through completed and proposed rulemaking efforts, including: HM-219A, Hazardous Materials: Response to Petitions from Industry to Modify, Clarify, or Eliminate Regulations, PHMSA-2015- 0102.\4\ In this final rule, PHMSA amended the HMR in response to 19 petitions for rulemaking submitted by the regulated community to update, clarify, modernize, or provide relief from miscellaneous regulatory requirements. --------------------------------------------------------------------------- \4\ 83 FR 55792 (Nov. 7, 2018). https://www.govinfo.gov/content/pkg/FR-2018-11-07/pdf/2018-23965.pdf . --------------------------------------------------------------------------- HM-219B, Hazardous Materials: Response to an Industry Petition to Reduce Regulatory Burden for Cylinder Requalification Requirements, PHMSA-2017-0083.\5\ In this final rule, PHMSA amended the requalification periods for certain Department of Transportation (DOT) 4-series specification cylinders in non-corrosive gas service in response to a petition for rulemaking submitted by the National Propane Gas Association. --------------------------------------------------------------------------- \5\ 85 FR 68790 (Oct. 30, 2020). https://www.govinfo.gov/content/pkg/FR-2020-10-30/pdf/2020-22483.pdf . --------------------------------------------------------------------------- HM-219C, Hazardous Materials: Adoption of Miscellaneous Petitions to Reduce Regulatory Burdens, PHMSA-2017-0120.\6\ In this final rule, PHMSA [[Page 43018]] amended the HMR in response to 24 petitions for rulemaking submitted by the regulated community between February 2015 and March 2018 to update, clarify, or provide relief from various regulatory requirements without adversely affecting safety. --------------------------------------------------------------------------- \6\ 85 FR 75680 (Nov. 25, 2020). https://www.govinfo.gov/content/pkg/FR-2020-11-25/pdf/2020-23712.pdf . --------------------------------------------------------------------------- HM-233G, Hazardous Materials: Continued Conversion of Special Permits, PHMSA-2017-0121. In this NPRM, PHMSA will be proposing to amend the HMR to adopt provisions contained in certain widely used or longstanding special permits that have an established safety record. The proposed revisions are intended to provide greater flexibility and eliminate the need for numerous special permit renewal requests, thus reducing paperwork burdens for the agency and the regulated community and facilitating commerce while maintaining an equivalent level of safety. HM-215O, Hazardous Materials: Harmonization with International Standards, PHMSA-2017-0108.\7\ In this final rule, PHMSA amended the HMR to maintain alignment with international regulations and standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. These revisions were necessary to harmonize the HMR with recent changes made to the IMDG Code, the ICAO TI, and the UN Model Regulations. --------------------------------------------------------------------------- \7\ 85 FR 27810 (May 11, 2020). https://www.govinfo.gov/content/pkg/FR-2020-05-11/pdf/2020-06205.pdf . --------------------------------------------------------------------------- HM-265, Hazardous Materials: Advancing Safety of Highway, Rail, and Vessel Transportation, PHMSA-2018-0080. In this NPRM, PHMSA will be proposing to amend the HMR to adopt a number of modal-specific amendments that would enhance the safe transportation of hazardous materials. PHMSA, in consultation with the Federal Motor Carrier Safety Administration (FMCSA), the Federal Railroad Administration (FRA), and the United States Coast Guard (USCG), will propose amendments identified during Departmental review and from stakeholder petitions for rulemaking. The Department has received additional regulatory modernization topics through petitions and internal review efforts. PHMSA believes these additional topics reflect changing technologies, transportation trends, and economic conditions and therefore deserve our consideration. However, PHMSA understands there is value in obtaining additional information on the potential safety and economic impacts for these topics to inform specific changes to the HMR in the future. Thus, the intent of this ANPRM is to raise awareness about these topics, gather more information, and further evaluate the safety and environmental benefits as well as the feasibility of proposing changes to the HMR. PHMSA will review and evaluate all comments received and late-filed comments to the extent practicable. II. Objective Federal Hazardous Materials Transportation law authorizes the Secretary to ``prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce'' (49 U.S.C. 5101 et seq.). The Secretary has delegated this authority to PHMSA (49 CFR 1.97(b)). The HMR are designed to achieve three primary goals: (1) ensure that hazardous materials are packaged and handled safely and securely during transportation; (2) provide effective communication to transportation workers, emergency responders, and the general public of the hazards of the materials being transported; and (3) minimize the consequences of an accident or incident should one occur. The hazardous materials regulatory system is a risk management system that is prevention- oriented and focused on identifying safety or security hazards and reducing the probability and consequences of a hazardous material release. As new technologies are developed, understanding of the risks inherent in the transportation of hazardous materials may change. New technologies can potentially provide new opportunities to improve packaging, hazard communication, and incident minimization. PHMSA recognizes new technologies and techniques can potentially reduce costs and burdens to society but remains focused on our primary mission to protect people and the environment by advancing the safe transportation of hazardous materials, including energy products, that are essential to our daily lives. Any change to the existing safety system in the HMR--e.g., containment, communication, and incident mitigation--must be carefully evaluated when considering cost savings or cost burdens from a regulation. Therefore, we are publishing this ANPRM to solicit comments on the safety, environmental, and economic impacts of regulatory modernization initiatives suggested by the regulated community and other stakeholders. To assist us in properly compiling information that we receive, when responding to a specific question below, please note the topic letter and question number in your comment. When providing estimates of economic impact or other quantitative information, please describe the basis for estimates, including data sources and calculations. With respect to cost data, both granular (i.e., per unit costs), aggregate, and programmatic (both one-time implementing and recurring) cost data are particularly helpful in PHMSA's evaluation of proposed changes to the HMR. When estimates are approximate or uncertain, consider using a range or specifying the distribution in other ways. For example: B. Non-Bulk Packaging, Intermediate Bulk Container, and Large Packaging Periodic Retest Extension 9. The total cost of each non-bulk drum design periodic recertification is approximately $XXX. We estimate total spending on package recertifications is $XXXXX for our company annually. If PHMSA were to change those recertification requirements to allow a longer interval between required recertification events as discussed in the ANPRM, we believe this would result in a total additional cost savings to our company of $XXX annually. We also anticipate one-time implementation costs (pertaining to initial training and updating of documentation) of $XXX and recurring costs of $XXX annually. III. Topics Under Consideration A. Evaluation of Carrier Maintenance of Emergency Response Information Carriers that transport hazardous material must maintain emergency response information (ERI) that meets the requirements of Sec. 172.602 onboard their motor vehicle, train, plane, or vessel. In accordance with Sec. 172.602, ERI must be immediately accessible to train crew personnel, drivers of motor vehicles, flight crew members, and bridge personnel on vessels for use in the event of incidents involving hazardous materials as well as emergency responders and representatives of government agencies conducting an investigation. PHMSA requests comment on the continued utility of this requirement given advancements in technology and greater availability of resources, such as the Emergency Response Guidebook (ERG), to the emergency responder community. Specifically, PHMSA requests comment on the following questions: [[Page 43019]] 1. Should ERI be required to accompany shipments of hazardous materials? If no, what alternatives should be considered that maintain existing levels of safety? 2. How does, if anything, the utility or value of ERI vary under Sec. 172.602 in the different modes of transportation? a. In highway and rail accidents, is emergency response generally conducted by emergency responders rather than carrier personnel? Explain. b. How much do emergency responders rely on the ERI provided by the highway or rail carrier, or do they rely on their own? c. For air and marine vessel incidents, are carrier personnel engaged in response actions? Explain. d. Does air and vessel incident response depend to a larger degree on ERI maintained by the carrier compared to highway and rail? 3. Provided an equivalent level of safety can be maintained, what are the potential cost savings involved in revising the ERI requirements under Sec. 172.602? a. Would revisions to Sec. 172.602 in effect ``shift'' the costs of maintaining ERI to entities other than the carrier, such as emergency responders affiliated with tribes, states, counties, or localities? 4. Are there differences in the reliance on the carrier's copy of ERI between different types of emergency responders? Differences to consider include urban and rural organizations, professional and volunteer, and different response branches such as law enforcement officers and firefighters. B. Non-Bulk Packaging, Intermediate Bulk Container, and Large Packaging Periodic Retest Extension Packaging standards for UN Performance Oriented Packagings (POP), also referred to as UN specification packagings, Intermediate Bulk Containers (IBCs), and Large Packagings, are performance-based, rather than highly prescriptive. The HMR provide general standards and instructions for the construction of UN specification packagings and IBCs in part 178, subparts L and N, respectively. However, in order to be qualified to bear a UN specification packaging mark, each non-bulk packaging or IBC design must pass qualification tests in part 178, subparts M and O, respectively. After a design has been initially qualified, the HMR require that each non-bulk single packaging design and IBC design must undergo a periodic retest at least every 12 months (see Sec. Sec. 178.601(e) and 178.801(e)). Each non-bulk combination packaging design and Large Packaging design must undergo periodic retest at least every 24 months (see Sec. Sec. 178.601(e) and 178.955(e)). These tests are intended to demonstrate that the manufacturer's packagings continue to meet the standards required for the safe transportation of hazardous materials. The Research and Special Programs Administration (RSPA)--PHMSA's predecessor agency--adopted UN POP standards into the HMR on December 21, 1990, in a rulemaking known as HM-181 (55 FR 52402).\8\ The UN POP system replaced the existing system of heavily prescriptive packaging requirements. --------------------------------------------------------------------------- \8\ https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/rulemakings/archived-rulemakings/72931/55-fr-52402-final-rulereducedsize.pdf . --------------------------------------------------------------------------- Those prescriptive requirements accommodated limited innovation in package design and qualification and contributed to a sizable code of regulations through unnecessary duplication of regulatory text. At the time the UN POP standards were proposed, RSPA received comments stating opposition to periodic packaging testing requirements after initial qualification. Commenters specifically requested that no ``requalification'' testing be required unless a design change was made to the packaging because of the time and expense involved in annually testing packagings. In response to these comments, RSPA stated its understanding that conducting periodic packaging testing every 12 months was not, by itself, sufficient to ensure each packaging produced by a manufacturer would meet the required performance standards. RSPA stated the expectation that manufacturers would need to take additional measures, such as testing an increased number of samples or testing samples to more stringent levels (e.g., higher drops or increased hydrostatic test pressures) and implementing quality control programs to ensure that each packaging they produced met the UN POP standards. Additionally, RSPA noted that a 12-month periodic retesting requirement was a relaxation of testing requirements for many packaging types, compared to the previous packaging standards in the HMR. However, RSPA acknowledged that this requirement would be particularly onerous for manufacturers of non-bulk combination packagings because of the large number of very similar designs in production, and therefore allowed a number of variations in package design that would not require retesting (see Sec. 178.601(g)) and extended the periodic retest requirement to 24 months for non-bulk combination packagings. See pages 55 FR 52459-52460 of final rule HM-181 for further details on RSPA's response to commenters regarding implementation of UN POP standards. Several comments related to the periodic retest requirement for UN specification non-bulk packagings and IBCs were submitted to the 2017 Regulatory Reform Notice docket. The Reusable Industrial Packaging Association (RIPA),\9\ the Industrial Packaging Alliance of North America (IPANA),\10\ and the Sporting Arms and Ammunition Manufacturers Institute (SAAMI) \11\ requested that PHMSA extend the periodic retesting interval to up to five years for UN specification non-bulk packagings and IBCs to align with international standards that permit longer retest intervals and to reflect the higher quality manufacturing practices now in place in the packaging industry. After the comment period of the 2017 Regulatory Reform Notice closed, IPANA submitted a petition for rulemaking, P-1713,\12\ and SAAMI submitted a petition designated P-1732 \13\ re-iterating their request. --------------------------------------------------------------------------- \9\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2634 . \10\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2667 . \11\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-1479 . \12\ https://www.regulations.gov/docket?D=PHMSA-2018-0053 . \13\ https://www.regulations.gov/docket?D=PHMSA-2019-0069 . --------------------------------------------------------------------------- PHMSA notes that, unlike many other countries, when the UN POP standards were adopted into the HMR, we did not require that packaging manufacturers send their packagings to an independent third-party laboratory for design qualification and periodic retesting. Rather, we allowed, and continue to allow, non-bulk UN specification packaging and IBC manufacturers to ``self-certify'' their own packagings by conducting the required tests and recording the results. PHMSA is requesting comment on the following questions to evaluate RIPA, IPANA, and SAAMI's requests: 1. Can a package manufacturer or a UN Third-Party Packaging Certification Agency demonstrate through data, modeling, or other means, that a packaging design that is tested every 60 months performs as well as a design tested every 12 to 24 months? Explain. 2. How have manufacturers' quality assurance procedures evolved and improved since the implementation of UN POP system? Please provide specific examples for all packaging types believed to warrant a longer design qualification interval. [[Page 43020]] 3. For trade associations who represent packaging manufacturers, what percentage of packaging manufacturers in the United States have implemented improved quality assurance procedures for UN POP (non-bulk, Large Packagings, and IBCs) since the current system was adopted in the HMR in 1990? 4. For trade associations and packaging manufacturers, how frequently are internal quality control tests conducted by manufacturers? a. What types of tests? b. Does every U.S. IBC and non-bulk specification packaging manufacturer follow the same internal quality control program? If not, are there similarities among these manufacturers' quality control programs? Are there best practices? c. Is there a voluntary consensus standard (e.g., ISO, ASTM, etc.) used to normalize these internal quality control tests such that the standard could be incorporated by reference into the HMR? 5. Are there similar quality control methods used for all the different types of packagings (e.g., steel drums, fiberboard boxes, composite IBCs, etc.)? If not, how do the quality control methods differ by packaging type? 6. For trade associations who represent packaging manufacturers, or packaging manufacturers, how many how many non-bulk, Large Packaging, and IBC packaging designs are currently in production in the U.S.? Please provide information by type and whether the packagings are single packagings or combination packagings (e.g., 5,000 combination package 4G fiberboard box designs, 1,500 single package 1A1 non- removable head steel drum designs, etc.). 7. Of the current UN POP designs in production in the U.S., what percentage(s) are variations on tested designs produced without further testing under Sec. 178.601(g)? 8. What is the cost of periodic retesting of a packaging for self- certifiers (i.e., manufacturers who certify their own packagings)? Please provide information by type (e.g., $1,000 for a 4G combination package fiberboard box design, $3,500 for a composite IBC design, etc.). a. For a typical manufacturer, how much does periodic recertification cost on an annual basis? 9. What is the total cost of a non-bulk, Large Packaging, and IBC packaging periodic recertification for manufacturers who use UN Third- Party Packaging Certification Agencies to certify their packagings? Please provide information by type (e.g., $1,000 to recertify a 4G combination packaging fiberboard box design, $3,500 to recertify a composite IBC design, etc.). a. For a typical manufacturer, how much does periodic recertification cost on an annual basis? 10. Given the variability in packaging types encompassed by non- bulk, Large Packaging, IBC POP standards and the differing capabilities of manufacturers, would it be more effective to consider extension of periodic retest periods on a case-by-case basis through issuance of approvals, as provided by Sec. Sec. 178.601(e), 178.801(e) and 178.955(e)? 11. Would packaging manufacturers be willing to submit packagings to UN Third-Party Packaging Certification Agencies for testing, in lieu of self-certification, in order to have a longer interval between periodic qualifications? Why or why not? 12. Do the users of non-bulk packagings, IBCs, or Large Packagings support an extension of the periodic qualification interval? Why or why not? 13. How would the extension of the periodic qualification interval impact costs or savings for users of non-bulk packagings, IBCs, or Large Packagings? Please quantify the impact on burden hours for employees using Bureau of Labor Statistics labor categories, if possible. C. Use of Non-Bulk Package Test Samples for Multiple Tests The HMR require that all non-bulk UN POP designs, also known as UN specification packagings, be tested in accordance with the requirements in part 178, subpart M. These testing requirements specify the types of tests that must be conducted, and the number of samples of packages that must be subjected to the tests. Generally, the HMR do not allow sample packages to be reused for multiple tests, i.e., a drum that is dropped as part of a drop test cannot be used for the stacking test (see Sec. 178.601(k)(1)). In 2017, PHMSA issued Letter of Interpretation Reference Number 16- 0154,\14\ which confirmed that package test samples may not be reused for multiple tests, unless authorized by the terms of an approval (see Sec. 178.601(k)(2)). PHMSA has issued approvals authorizing the reuse of package test samples for different tests to approved UN Third-Party Packaging Certification Agencies and other entities. IPANA submitted a comment \15\ to the 2017 Regulatory Reform Notice requesting that PHMSA rescind Letter of Interpretation 16-0154. PHMSA maintains the position that this letter of interpretation is correct based on the current requirements of the HMR. However, we are willing to consider revising the HMR to permit the reuse of packages for different tests for all package designs without approval from the Associate Administrator. To evaluate this potential change to the HMR, PHMSA requests comment on the following questions: --------------------------------------------------------------------------- \14\ https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2017/160154.pdf . \15\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2667 . --------------------------------------------------------------------------- 1. How many package designs would benefit from the option to re-use a test sample for another test (i.e., use a sample package from the drop test for the stack test)? 2. How much time would be saved for each design so tested? What type of employee would save time? (Use Bureau of Labor employee category codes, if possible.) 3. How many fewer test samples would be required for each design so tested? 4. What are the cost savings, per design test or design recertification test cycle, by reusing test samples for additional tests? 5. Are there certain combinations of design tests that are most suited for use of one sample across multiple tests? Are there certain tests that should not be allowed to be performed with tests samples subjected to other tests? 6. In practice, would sample reuse be limited to certain packaging designs, types, and packaging materials? Please provide the packaging types and materials. 7. Would permitting package sample reuse increase test failures and associated costs with re-running certification tests? Please explain your reasoning. 8. If sample reuse is permitted, what is the potential impact on safety? a. Would permitting sample reuse cause packaging designers to create more robust packaging designs? If so, how? b. Is there any possibility that allowing reuse would degrade safety in packaging designs? If so, how? c. Is there any concern that it will be more difficult to determine the root cause of a packaging test failure if the sample has been subjected to multiple tests? D. Aerosol Classification Alignment Section 171.8 of the HMR define an ``aerosol'' as: an article consisting of any non-refillable receptacle containing a gas compressed, liquefied or dissolved under pressure, the sole purpose of which is to expel a nonpoisonous (other than a Division 6.1 [[Page 43021]] Packing Group III material) liquid, paste, or powder and fitted with a self-closing release device allowing the contents to be ejected by the gas. Aerosols are limited to 1 L in capacity and are eligible to be shipped as a limited quantity in accordance with Sec. 173.306(a)(3), (a)(5) and (b). These limited quantity exceptions allow for alternative packaging, specifically: non-specification non-refillable containers; DOT-specification DOT 2P, DOT 2P1, DOT 2Q, DOT 2Q1 or DOT 2Q2 non- refillable metal receptacles; or DOT-specification DOT 2S non- refillable plastic receptacles. Eligibility for the different containers (non-specification, DOT 2P, 2Q or 2S) is dependent on the pressure and flammability of the contents (i.e., Division 2.1 aerosols are not permitted in DOT 2S plastic receptacles, and 2Q containers can contain material at higher pressures than 2P containers; see Sec. 173.306(a)(3) for further details). The limited quantity exception also provides hazard communication exceptions that facilitate commerce while maintaining a level of safety corresponding to the level of hazard present for the aerosols. In the Sec. 172.101 Hazardous Materials Table (HMT), there are five entries for UN1950 aerosols: Aerosols, corrosive, Packing Group II or III, 2.2 (8) Aerosols, flammable, 2.1 Aerosols, flammable, n.o.s. (engine starting fluid), 2.1 Aerosols, non-flammable, 2.2 Aerosols, poison, Packing Group III, 2.2 (6.1) These entries do not address other possible combinations of propellants and the liquid, paste, or powder contained in the aerosol (i.e., a Division 2.1 flammable aerosol with a subsidiary hazard of Class 8). The ICAO TI edition currently incorporated by reference in the HMR (the 2021-2022 edition) lists 11 types of UN1950 aerosols authorized for transportation by aircraft: Aerosols, flammable, 2.1 Aerosols, flammable, containing substances in Division 6.1 PG III and substances in Class 8, PG III, 2.1 (6.1, 8) Aerosols, flammable, corrosive, containing substances in Class 8, PG III, 2.1 (8) Aerosols, flammable (engine starting fluid), 2.1 Aerosols, flammable, toxic, containing substances in Division 6.1 PG III, 2.1 (6.1) Aerosols, non-flammable, 2.2 Aerosols, non-flammable, containing substances in Division 6.1 PG III and substances in Class 8, PG III, 2.2 (6.1, 8) Aerosols, non-flammable, containing substances in Class 8, PG III, 2.2 (8) Aerosols, non-flammable (tear gas devices), 2.2 (6.1) Aerosols, non-flammable, toxic, containing substances in Division 6.1, PG III, 2.2 (6.1) Aerosols, oxidizing 2.2 (5.1) The IMDG Code Dangerous Goods List (DGL) lis
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