Amidst a busy two weeks of regulatory activity across the federal government, the FRA issued a revision to civil penalties as well as an important ICR dealing with the transport of flammable liquids by rail. A BNSF oil train roars past the commuter station passenger platform in Sumner, Washington south of Seattle on Sunday, November 25th, 2018. Photo © 11/2108 by Nikki Burgess; all rights reserved.

Hopefully everyone has had a safe and enjoyable Thanksgiving holiday period—welcome back!  The last two busy weeks of regulatory activity are below, with the elephant in the room being the release this morning of PHMSA’s HM-215O International Harmonization NPRM, or proposed rule.  This rule, once implemented, would align US regulations with those found in the 20^th Edition of the UN Model Regulations, the ICAO Technical Instructions, and IMDG Code as updated for 2019.  The NPRM’s comment period will close on January 28^th, 2019.

PHMSA HM-215O Harmonization Rule

As noted above, the agency released the HM-215O Harmonization Rule as an NPRM, or proposed rule.  The rule will now be open for comments, followed by a period of necessary consideration of those comments and potentially, a revision based on them to the final rule.  When will the final rule publish?  PHMSA is aware of the urgency in the DG community over harmonization, so one can guess that the agency will expedite finalization after the close of comments, but even so it is to be expected that there will some further delay in publication, especially if comments are extensive.  Two areas of the NPRM that in my opinion may draw comments are the change to classification standards for Class 8 corrosives, and new guidance regarding classification of articles bearing dangerous goods.  Both issues introduce new concepts to the HMR which, one can posit, some stakeholders may wish to have addressed and revised in some way.   The regulated community will just have to wait and see what happens.  Some of the major points the rule addresses:

• Update to incorporations by reference to include the latest editions of the standard set of regulations (UNMR, ICAO TI, IMDG Code, Canada TDG, UN/GHS 7^th Edition, etc.)
• HMT 172.101 update to reflect the DGL revisions and additions in the 20th UNMR
• Addition of a classification scheme for articles containing dangerous goods that do not already have a proper shipping name
• Establishes the requirement for a UN 38.3 test summary document for lithium battery manufacturers—another area where one might reasonably expect significant comment
• Additional actions surrounding lithium batteries including their treatment when integrated into baggage and their required segregation from other classes of dangerous goods
• Alternative classification criteria for corrosives
• New provisions for polymerizing substances
• Resolves the 2mm border line and 5mm setback quandary for hazard labels by making these values approximate vice specific; this seemingly innocuous change has been an ongoing issue of concern for several years in the regulated community

Detailed treatment of the above issues can be found in the NPRM itself, linked to here

Other PHMSA News

• Other PHMSA action included an update to the civil penalty amounts for 2019 to account for inflation.  Increase to penalties range from approximately 1.6 to 2%, depending on the type and severity of infraction cited.  See the increase here
• PHMSA issued Emergency Waivers #9 and #10 relaxing the requirements of the HMR inside the declared disaster zones in California impacted by the recent tragic wildfires.  As is usual, the waivers allow transport within the waiver zone under relaxed technical standards, as long as safety is not compromised. See the waivers below:

#9: https://www.govinfo.gov/content/pkg/FR-2018-11-19/pdf/2018-25111.pdf

#10: https://www.govinfo.gov/content/pkg/FR-2018-11-19/pdf/2018-25112.pdf

• The agency also issued an ICR related to the transport of flammable liquids by rail; this as part of a larger effort to seek stakeholder input on regulatory actions involving this important commodity and mode of transport.  See the ICR here

EPA

• The agency published a renewed information collection related to protection standards for workers involved in hazardous waste operations and emergency response (HAZWOPER).  See the ICR here
• The agency also published its semi-annual regulatory agenda

U.S. DOT

• The agency published its semi-annual regulatory agenda
• The FAA, FRA, and FMCSA are all also included in the general USDOT revision to civil penalties for its enforcement agencies; the same action is applied to PHMSA above.  Penalty increases range from 1.6 to 2%.  See the action here

TSA

• The agency is announcing the opportunity for explosives detection canine teams and canine team providers to become a registered Certified Cargo Screening Facility-Canine (CCSF–K9) under TSA’s Certified Cargo Screening Program (CCSP). This notice provides information necessary for qualified, interested persons to initiate the registration process.  See the details here
• The agency also announced the extension of an ICR dealing with Air Cargo Screening requirements.  See this action right here

CPSC

The Consumer Product Safety Commission published its semi-annual regulatory agenda, seen here

Homeland Security

Homeland Security has also published its semi-annual regulatory agenda, which includes activity surrounding the US Coast Guard and the TSA

U.S. DOL

The agency published its semi-annual regulatory agenda, which includes issues affecting OSHA.  See the link

STB

The agency that governs the business interactions of the nation’s railroads also published its semi-annual regulatory agenda

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