Richard Schweitzer, PLLC
October **, 2014
President
Donald Bossow
Director, NA Reg Affairs
Sealed Air Corporation
First Vice President
Sean Broderick
Senior Manager, Global Govt Relations
Procter & Gamble Distributing LLC
Second Vice President/Treasurer
Dave Madsen
HazMat Analyst
Autoliv ASP, Inc.
Secretary
Amy Fischesser
Corporate Hazardous Materials Manager
Sun Chemical Corporation
Executive Committee Member
Robert Heinrich
Transportation Safety Advisor
Novartis Pharmaceuticals
Magdy El‐Sibaie, PhD
Acting Associate Administrator, Hazardous Materials Safety
Pipeline and Hazardous Materials Safety Administration
US Department of Transportation
1200 New Jersey Ave., SE
East Bldg. Second Floor
(PH) Washington, DC 20590‐0001
Dear Dr. El‐Sibaie:
The Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA) hereby submits
comments to the Notice of Proposed Rulemaking (NPRM) published in Docket No.
PHMSA‐2011-0143 (HM‐253) on August 11, 2014.
Board of Directors
Jeanette DeGennaro
EHS Compliance Mgr.
Instrumentation Laboratory
Trevor Howard
Mgr Safety/Dangerous Goods Standards
Air Canada
James Jahnke
Sr. Manager Dangerous Goods
Merck and Co.
Richard Lattimer
Consultant-HSE
Eli Lilly and Company
David Littlejohn
Corporate Safety Advisor
FedEx Express
Boyd Stephenson
Director, Hazardous Materials Policy
American Trucking Associations, Inc.
Carrie Wayne
Global Manager, Trans. Safety
Honeywell International
Daniel Wieten
National Mgr Compliance Plan & Admin
Toyota Motor Sales, USA, Inc.
Jeanne Zmich
Vice President R&D
Labelmaster
General Counsel
Richard Schweitzer, PLLC
COSTHA is a not‐for‐profit organization representing manufacturers, shippers,
distributors, carriers, freight forwarders, trainers, packaging manufacturers and others
associated with the hazardous materials transportation industry. In addition to
promoting regulatory compliance and safety in hazardous materials transportation,
COSTHA assists its members and the public in evaluating the practicality and efficacy of
laws, rules and regulations for the safe transportation and distribution of hazardous
materials.
COSTHA appreciates the opportunity to comment on this important Rulemaking. As
noted in the NPRM, COSTHA Petitioned PHMSA for this Rulemaking, and we are
encouraged the Administration is continuing to review adopting provisions for these
types of shipments. While we support a number of aspects of the proposed Rule, we
also note our members have continued to review the reverse logistics process since
COSTHA filed the petition and provided comments in the ANPRM. Therefore, we would
like to discuss a number of concerns about the specific proposals.
Definition
PHMSA proposed adopting a definition for Reverse Logistics in §171.8. We believe the
definition needs some editing as it uses terms not found in the HMR. For example, the
term “moving” is not appropriate. COSTHA proposes PHMSA consider the following
edits to the proposed definition:
Reverse logistics is the process of moving offering for transport and
transporting hazardous materials from their point within transportation
including final destination for return for the purpose of capturing value, recall,
replacement, proper disposal or similar reason.
Council on Safe Transportation of Hazardous Articles
7803 Hill House Court, Fairfax Station, VA 22039 • Phone: (518)761-0389 • Fax: (518)792-7781 • www.costha.com
In COSTHA petition P-1528 we proposed regulatory text for the definition of reverse logistics at §171.8
which we continue to suggest more clearly defines the scope of the term.
§171.8 Definitions – Reverse logistics for the purposes of this subchapter, means offering for
transportation or transporting hazardous materials by motor vehicle, rail car or vessel that are intended
to be returned to or between a vendor, distributor, manufacturer or other person for the purpose of
returning for credit, recalling product, replacement or similar reason for instance, from a retail or
wholesale outlet.
Hazard Communication
COSTHA believes keeping the hazard communication simple is critical for smooth implementation.
However, several of our members including participants in the COSTHA Air Carrier Roundtable noted
that the proper shipping name or common name would not provide enough communication for carriers
to implement the other requirements of the exception. For example, a common name “hairspray” may
or may not represent an aerosol or a flammable liquid. “Bleach” may describe a general product that is
both corrosive and an oxidizer, but not all bleach-type products meet the criteria for inclusion in Class 8
or Division 5.1. Many common names do not include a recognizable indication that hazardous materials
would be packed and present within the package.
Clear hazard communication for materials offered under this exception would enable air carriers to
identify materials which are not authorized for air transport. For example, the limited quantity mark for
air transport is distinguished from limited quantities for surface by the inclusion of the “Y” on the LQ
mark. Air carriers can train employees to identify and reject consignments offered for air but which are
marked with the surface LQ mark alone. A clearly identifiable mark indicting these materials are being
offered under the Reverse Logistics exceptions would give air carriers a trigger for identification and
rejection for air transport.
COSTHA proposes the following mark, similar to language used for §173.4 small quantity exceptions, be
required instead of the proper shipping name or brand:
This package conforms to 49 CFR §173.157 for domestic surface transport only.
PHMSA is also proposing to require notification to the driver of the vehicle on which these materials are
loaded. This requirement is similar to the notification required in §173.6(c)(4). However, in the case of
Materials of Trade (MOTs), the exception applies only in limited cases:
 For the purpose of protecting the health and safety of the motor vehicle operator or passengers,
 For the purpose of supporting the operation or maintenance of a motor vehicle (including its
auxiliary equipment), or
 By a private motor carrier (including vehicles operated by a rail carrier) in direct support of a
principal business that is other than transportation by motor vehicle.
Therefore the driver understands that the material he is carrying is specific to his/her operation, safety,
or business. In the proposed exceptions, the driver would have no indication of what hazards are
present in the hazardous materials are being offered as it simply constitutes a notification that
hazardous materials are being loaded on his vehicle. There is no requirement for a shipping paper.
Instead of using MOTs, a more closely aligned comparison may be with limited quantities. Under the
limited quantity provisions, the driver is not notified and only the package is marked. COSTHA does not
believe the notification to the driver provides any additional information than that which is presented by
the marking, and is more onerous than that already provided for limited quantities. Instead, we believe
such communication would lead to additional confusion. We see no positive impact on safety and
therefore recommend the driver notification proposal be eliminated from this rulemaking.
COSTHA questions the limitation to highway transport within this rulemaking and suggests that
consideration be given to domestic transportation within Part 174 of 49 CFR for rail transport, including
“piggy back” and Part 176 of 49 CFR when vessel transport might be an option for shipments authorized
under this rulemaking.
Hazard Classes
COSTHA notes the list included in the NPRM of hazard classes which would be eligible to be included in
the reverse logistics exception is nearly identical to the list provided in our original petition. However,
with regards to Division 6.2, we draw attention to the fact that the proposed language does not include
all our original proposed language. Without this language, it appears that all Category A infectious
substances could be shipped using this provision. Given the recent public events regarding infectious
substances, we do not believe this is appropriate. Therefore, we would suggest PHMSA either identifies
which Division 6.2 materials are authorized and which are not, or remove Division 6.2 materials from the
section completely.
Packaging
PHMSA proposes in §173.157(b) paragraphs (1)-(9) the requirements for packaging. Paragraph (1)
defines the general packaging requirements including leakproof/siftproof and secured against shifting or
damage. Paragraph (2) goes on to mandate the use of manufacturer’s original packaging or packaging
of equal or greater integrity. Our members commented that PHMSA has not provided a limiting
statement on the use of manufacturer’s packaging that has been damaged or significantly impaired from
performing its protective function. Therefore it would be possible for materials to be returned in ripped,
torn, or otherwise damaged packaging. We do not believe this was the intent of the language.
COSTHA suggests additional language could be added to prevent this unwanted situation. The following
language is proposed:
§173.157(b)(2) Each material must be packaged in the manufacturer’s original packaging if
available and undamaged, or a packaging of equal or greater strength and integrity.
Training
Training is a vital and important component of any regulatory requirement. COSTHA recognizes the
importance of providing appropriate instruction on the use of the exception, and believe inclusion of the
requirement to training on the exception in §173.157(d)(2) is valid. However, the proposed
§173.157(d)(3) requires a record of the training. PHMSA provides no indication as to what would be
required of a training record. What should be included in the record? Is there a record retention
requirement? Without providing details on recordkeeping requirements, shippers will be unduly subject
to enforcement interpretations.
COSTHA supports the requirement for training as detailed in §173.157(d)(2). We note this training is
similar to the training requirements of §173.6 (materials of trade) and §173.185(c)(3)(D)(iv). However,
we recommend eliminating the recordkeeping requirements of §173.157(d)(3).
Battery Recycling
COSTHA supports the proposal to extend the exceptions in §173.159(e) to allow the pickup of used
automobile batteries from multiple shipper locations. COSTHA is aware of current special permits which
already authorize this provision, and we are not aware of any negative safety issues reported in the prior
use of the special permits. Adoption of the provisions as proposed would reduce the burden of renewing
special permits and provide a practical solution for battery recyclers.
We appreciate the opportunity to comment on this important Rulemaking.
Sincerely,
Tom Ferguson, PG, CHMM, DGSA
Senior Technical Consultant