DG Digest: PHMSA addresses ICAO and IMDG Code issues surrounding regulatory freeze

Canada’s Transportation Safety Board made additional recommendations to Transport Canada regarding rail safety this week. A Canadian National train bound for Seattle is seen passing through Kent, Washington on February 18th, 2017. Photo © 2/2017 by Nikki Burgess; all rights reserved.

February wraps up with the “regulatory freeze” still in effect in the United States. As such, new US regulatory activity remains low.  Rumors continue to swirl regarding imminent release of the USDOT/PHMSA HM-215N UN Harmonization; however, as of press time Monday morning it has not appeared and it is not presently on the schedule for publication in the Federal Register for the 28th, either.  The wait goes on.  Meanwhile, here’s what’s new:

LATE BREAKING NEWS:

As this blog went to press Monday morning, PHMSA released an important memo to the public. It regards enforcement action related to the current situation in respect to the fact that due to the regulatory freeze the US is still operating under the 2015 – 2016 version of the ICAO Technical Instructions (ICAO TI). This is because they are incorporated by reference in the 49 CFR (See 49 CFR 171.7).  Meanwhile the rest of the world has moved on to the 2017 -2018 version of the ICAO TI. This has produced a variety of unintended consequences for shippers, from lithium battery labeling differences to the new name and UN ID number splits surrounding engines and machinery. To a certain degree, confusion has reigned. In its new memo, PHMSA specifically states that:

 “…it will not take enforcement action against any offeror or carrier who is using the 2017 – 2018 versions of these standards when all or part of the transportation is by air with respect to the ICAO Technical Instructions or all or part of the transportation is by vessel with respect to the IMDG Code. In addition, PHMSA will not take enforcement action against any offeror or carrier who offers or accepts for domestic or international transportation by any mode packages marked or labeled in accordance with the 2017 – 2018 versions. PHMSA will permit the use of either the 2015 – 2016 standards or the newer standards until this notice is rescinded or otherwise modified.”

The memo goes on to note that this standard of enforcement will be exercised by all of DOT’s relevant sub-agencies; FAA, FRA, FMCSA, and PHMSA. The memo should bring at least a measure of welcome relief from the angst that has prevailed in the shipper/carrier communities over how to treat the current and frankly somewhat unprecedented situation.

The full text of the memo can be found here

This is a public document and may be downloaded and printed to provide to carriers or other entities that may have questions about the current PHMSA policy.

FMCSA

The nation’s motor carrier safety agency re-opened the public comment period for its previous notice announcing the application for exemption from several large national motor freight carriers to allow hair analysis in lieu of urine testing for pre-employment controlled substances testing of commercial driver’s license (CDL) holders. The exemption essentially notes that since hair testing is more accurate than urine testing and is in wide voluntary use in the industry, that the current requirement that exists for urine testing is superfluous where hair testing is carried out and represents an unnecessary cost and administrative burden. The Agency re-opens and extends the comment period for the notice of application for exemption; comments are due by April 25, 2017.  Here’s your way to contribute

DOL

Do you use aerial lifts as part of your business? The Department of Labor is submitting the Occupational Safety and Health Administration sponsored information collection request titled, ‘‘Aerial Lifts Standard,’’ to the Office of Management and Budget for review and approval for continued use. The OMB will consider all written comments that agency receives on or before March 27, 2017. Here’s where to have your say

CDC

In an interesting development for both the regulated transport and emergency response communities, the Center for Disease Control and Prevention has developed the Radiation Hazard Scale as a tool for communication in emergencies. The tool provides a common sense and relatively non-technical guide to response in such incidents that is intended both to quicken local response and provide more user-friendly advice to on-scene personnel.  See the tool here

USPS

In the week’s biggest regulatory news and additionally a rather interesting twist given the current regulatory freeze, the US Postal Service is preparing to revise Publication 52, its rules governing Hazardous, Restricted, and Perishable Mail, to provide new mailing standards for lithium batteries to bring it into alignment with both the most current ICAO standards as well as the stalled PHMSA HM-215N regulation.  The proposed actions are summarized below:

  • eliminate the current text marking option for mailpieces required to bear, or optionally permitted to bear, lithium battery markings, and limit markings to DOT-approved lithium battery handling marks only
  • Mailpieces restricted to surface transportation only, including those containing UN3090, lithium metal batteries shipped separately, will continue to be required to bear the current text marking in addition to a DOT-approved lithium battery handling mark
  • eliminate the requirement for accompanying documentation with mailings of lithium batteries
  • add the new DOT class 9 hazard warning label for lithium batteries to Publication 52, Exhibit 325.1, DOT Hazardous Materials Warning Labels: PROHIBITED IN THE MAIL
  • align its standards with PHMSA’s proposed regulations with regard to the requirement that the outer packaging used to contain small lithium batteries be rigid and of adequate size so the handling mark can be affixed on one side without the mark being folded
  • permit the use of padded or poly bags when cells or batteries are afforded equivalent protection by the equipment in which they are contained, but limit this exception only to batteries meeting the USPS definition of a button cell battery in 349.11(e) of Publication 52
  • take no action with regard to the requirement for lithium battery markings to appear on packages containing lithium cells or batteries or lithium cells or batteries packed with or contained in equipment when there are more than two packages in the consignment, since USPS will continue to define a consignment in postal terms as a single parcel, thus making any action regarding this PHMSA regulation unnecessary
  • revise Publication 52 to align with the April 1, 2016, final version of the ICAO regulations described above; with regard to this alignment, USPS contemplates the following changes:
    • Prohibit UN3480 lithium-ion and lithium polymer batteries in USPS air transportation.
    • Revise its quantity limitations for UN3480 lithium-ion and lithium polymer batteries in surface transportation to align with those for lithium metal batteries

The Postal Service must receive written comments on or before March 24, 2017. Here’s your link to comment 

EU ADR 

A short corrigendum to the newly released ADR 2017 has been released by the UNECE. The document corrects several typographical errors, minor sentence changes, and/or incorrect section enumerations in the latest text.  Here’s your link to the corrigendum

Canada TSB

Canada’s Transportation Safety Board issued a recommendation to Transport Canada that it consider further lowering the allowable speed of laden flammable liquid unit trains. The action follows completion of a study regarding a February 2015 derailment and fire involving such a train in Ontario.  See the news here


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