Small Quantity Exception for Transportation of Non-Flammable Gases [49 CFR 173.4]
The word "and" can make a big difference in the meaning of a regulation. When the Code of Federal Regulations inadvertently drops the word, it can cause quite a bit of confusion. In today's Reg of the Day, we'll look at the exception for shipment of small quantities of hazardous materials and how a missing word could lead to a potential misunderstanding when you take advantage of the exception.
The small quantity exception at 49CFR 173.4(a) states:
"When transported domestically by highway or rail in conformance with this section, quantities of Division 2.2 (except aerosols with no subsidiary hazard), Class 3, Division 4.1, Division 4.2 (PG II and III), Division 4.3 (PG II and III), Division 5.1, Division 5.2, Division 6.1, Class 7, Class 8, and Class 9 materials are not subject to any other requirements when..."
This means that you can ship non-flammable aerosols with a subsidiary hazard (e.g., toxic, corrosive, etc.) under the small quantity exception, but you cannot ship aerosols that do not pose subsidiary hazard under this exception, even though they might have a lesser hazard.
This is not how the regulation was published in the proposed or final regulations as published in the Federal Register. The proposed rule was published on August 24, 2010 at 75 FR 52070. The text of the proposal reads:
"When transported domestically by highway or rail in conformance with this section, quantities of Division 2.2 (except aerosols and with no subsidiary hazard), Class 3, Division 4.1, Division 4.2 (PG II and III), Division 4.3 (PG II andIII), Division 5.1, Division 5.2, Division 6.1, Class 7, Class 8, and Class 9 materials that also meet the definition of one or more of these hazard classes, are not subject to any other requirements when..."
The proposed rule stated that you can ship Division 2.2, non-flammable, non-toxic, gases under this exclusion, but not if they are aerosols, and not if they have a secondary hazard.
The final rule was published on January 19, 2011 at 76 FR 3308-3332. Clarification in the preamble to the final rule stated that Division 2.2, non-flammable, non-toxic gases can be shipped under this exception, including aerosols, as long as they do have a secondary hazard.
Based on Environmental Resource Center's conversations with the DOT, it is our advice that shippers of hazardous materials follow the wording of this rule as it appears in the Federal Register, not as it reads inthe Code of Federal Regulations. You can ship Division 2.2, non-flammable, non-toxic gases under the small quantity exception, provided they are not aerosols and they do pose a subsidiary hazard. The DOT has indicated they will correct this in an upcoming Federal Register.
Learn more about exceptions available for your shipments of hazardous materials by attending Environmental Resource Center's Hazardous Materials Training: The Complete Course, or webcast.