PHMSA Acknowledges Petition for Rulemaking to Harmonize the Definition of Aerosol

Last month, the U.S. Dept. of Transportation’s (DOT) Pipeline & Hazardous Materials Safety Administration (PHMSA) notified ACA and others that the joint petition for rulemaking to harmonize the U.S. definition of ‘aerosol,’ in the Hazardous Materials Regulations (HMR), with applicable international standards merits consideration in a future rulemaking. As such, PHMSA created a petition docket, PHMSA-2017-0131, where comments may be submitted.

In 2017, ACA, along with the Household & Commercial Products Association (HCPA, then CSPA), Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA), and National Aerosol Association (NAA) petitioned PHMSA to align the HMR with applicable international regulations by modifying the definition of an aerosol to include certain non-refillable gas containers with or without a liquid, paste or powder.

The current HMR definition at §171.8 states that “Aerosol means 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 Packing Group III material) liquid, paste, or powder and fitted with a selfclosing release device allowing the contents to be ejected by the gas.”

This definition is inconsistent with the definition of an aerosol found in the UN Model Regulations (UNMR), the International Maritime Dangerous Goods (IMDG) Code, the International Civil Aviation Organization Technical Instructions on the Safe Transport of Dangerous Goods by Air (ICAO TI), and the Regulations governing European Road Transport (ADR). The UNMR and the European ADR have included the provision “with or without a liquid, paste or powder” in their definition of an aerosol since at least 1997. To date, there is no data on record of incidents as a result of this broader definition. Some 50 countries are contracting parties to the ADR and dozens more use the international regulations in the ICAO TI and IMDG Code that includes the broader definition of an aerosol.

ACA and its fellow petitioners underscored to PHMSA that disharmony between these definitions leads to costly business operations based upon reclassification, marking and permit requirements. Notably, the definition used in the United States differs even from its largest export trading partners, Canada and Mexico. The ongoing additional expense to the U.S. economy is avoidable if the definition used in other international codes and regulations can be adopted by PHMSA, ACA and petitioners argue. These commercial expenses include but are not limited to management efforts of Special Permits, container marking, special storage/distribution and tracking. The additional expenses are, of necessity, included in consumer pricing.

In supporting this assertion, the joint petition cited data collected in 2016 that indicated a total of 4.6 billion aerosols manufactured in North America with a majority being manufactured and marketed in the U.S. These aerosol products represent ~$18 billion U.S. sales with a growth projection of $25 billion U.S. sales by 2025. Of those 4.6 billion aerosols, many are pure gas units used in consumer and industrial use. The disharmony causes confusion, inconsistency and rework across the industry which in turn causes financial hardship to U.S. suppliers, manufactures and marketers. The disharmony leaves U.S. manufactures and marketers at a disadvantage concerning the $52 billion U.S. sales available in the global marketplace. Regulatory disharmony is seen as a primary restraint to the aerosol industry.

The petition also addressed earlier discussions of this harmonization generated questions regarding safety of pure gas-containing systems. The petitioners stressed that particular classifications of U.S.-specified aerosol containers are tested for pressure retention at the supplier level. What’s more, in the United States, PHMSA and the aerosol industry have a strong safety record for gas-only aerosols. For example, special permits (DOT-SP 10232, DOT-SP 14188, and DOT-SP 14286 to name a few) authorize small pressurized containers of various gases, which meet the definition of a consumer commodity, to be reclassed as limited quantity and shipped with very broad exceptions. The petitioners noted that shipment of products under these permits and classifications have shown excellent safety in distribution and market. As such, the consensus position of CSPA, COSTHA, ACA and NAA is that there is no significant impact on safety concerning aerosol containers made of metal, plastic or glass containing a gas, compressed, liquefied or dissolved, with or without liquid, paste or powder.

ACA is urging PHMSA to consider the advantages in harmonizing the aerosol definition, and will submit comments through the newly opened petition docket.

Contact ACA’s Rhett Cash for more information.

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