TRANSPORTATION SECURITY ADMINISTRATION (FEES FOR TWIC & HAZMAT ENDORSEMENTS) / U.S. Department of Homeland Security Transportation Security Administration (TSA) is, “removing specific fee amounts from regulations regarding security threat assessments (STAs) and credentialing for Hazardous Materials Endorsements (HMEs) and Transportation Worker Identification Credentials (TWICs). These provisions include State collection of the HME fee, TSA collection of the HME fee, and collection of the TWIC fee. Removing specific fee references will enable TSA to have the necessary flexibility to lower or increase fees as necessary to meet the statutory obligation to recover its costs.”

“Provisions for Fees Related to Hazardous Materials Endorsements and Transportation Worker Identification Credentials.”

April 25, 2013. Final Rule.

The regulation takes no position on whether fees will go up or go down. But this blog is not creating a pool to bet on which way that will work out. Note in particular the reference to, “enable[ing] TSA to have the necessary flexibility to lower or increase fees as necessary to meet the statutory obligation to recover its costs.” 

HAZARDOUS MATERIALS (VARIOUS HMR’s AMENDMENTS) / PHMSA is amending the Hazardous Materials Regulations (HMR’s) to update and clarify them, to eliminate rules no longer needed, facilitate international commerce and simplify the HMR’s – there is no one prevailing policy or theme among these.

March 11, 2013, Final Rule.

“PHMSA is amending the Hazardous Materials Regulations (HMR) to make miscellaneous amendments to update and clarify certain regulatory requirements. These amendments promote safer transportation practices, eliminate unnecessary regulatory requirements, address a petition for rulemaking, incorporate a special permit into the HMR, facilitate international commerce, and simplify the regulations. These amendments also update various entries in the Hazardous Materials Table (HMT) and corresponding special provisions, clarify the lab pack requirements for temperature-controlled materials, and require hazmat employers to make hazmat employee training records available upon request to an authorized official of the Department of Transportation (DOT) or an entity explicitly granted authority to enforce the HMR.”

March 7, 2013, Final Rule.

“PHMSA is amending the Hazardous Materials Regulations in response to petitions for rulemaking submitted by the regulated community to update, clarify, or provide relief from miscellaneous regulatory requirements. Specifically, PHMSA is amending the recordkeeping and package marking requirements for third-party labs and manufacturers to assure the traceability of packaging; removing the listing for “NA1203, Gasohol, gasoline mixed with ethyl alcohol, with not more than 10% alcohol”; harmonizing internationally and providing a limited quantity exception for Division 4.1, Self-reactive solids and Self-reactive liquids Types B through F; allowing smokeless powder classified as a Division 1.4C material to be reclassified as a Division 4.1 material; and providing greater flexibility by allowing the Dangerous Cargo Manifest to be in locations designated by the master of the vessel besides “on or near the vessel’s bridge” while the vessel is in a United States port.”

UPCOMING / Railroad “de-regulation” vs. alleged “re-regulation” pertaining to Toxic-by-Inhalation / Poisonous-by Inhalation (TIH / PIH) railroad tariffs – CF Industries: U.S. Surface Transportation Board should require railroads to get U.S. STB approval before altering terms on which they handle TIH / PIH rail cars. COMMENTS: As with the reciprocal switching proposal – this does not take place in a context of a truly free market with robust competitive alternatives available to shippers. Denial of CF Industries’ petition arguably would leave it subject to “take-it-or-leave-it” posture with railroads as it relates to the terms of TIH / PIH shipments.

There is a lot involved in this proceeding, and more than can be concisely addressed here about the railroads’ reply brief filed February 27, 2013. Free copy available here.

This post focuses on the application made by CF Industries to the U.S. STB seeking it to require that railroads obtain approval prior to making any changes in tariff terms relating to shipment of TIH / PIH loads.

The gist of each side is captured in the railroads’ brief this week:

“… the Railroads would need to obtain prior Board approval and written support for such changes from FRA, PHMSA, and TSA. This request runs contrary to the Staggers Act. The Staggers Act provided railroads with rate freedom, which includes practices. In essence CF is asking that the Railroads file their tariffs with the Board for approval before those tariffs become effective.”

A U.S. STB resolution worth watching for.

Legal take-away:

On CF Industries’ petition for a declaratory order It is hard to agree with the railroads’ argument that all terms of TIH / PIH freight carriage amount to a question of “rate freedom”. More than economics and price are at stake in the concerntration of TIH / PIH rail cars on a particular train consist or other operational details relating to safety.

Consistent with this safety versus economics fault line in the petition for declaratory order, on January 28, 2013 the U.S. STB asked the Transportation Security Administration and the U.S. DOT hazardous materials safety agency (PHMSA) for comment on the operational terms (“3-car limit” “priority train service” terms) and for TIH / PIH involved in the companion proceeding to this one.

Practical take-away:

I have no way at this point of envisioning the end-game here.

The railroads fighting these two proceedings contend with their “common carrier” status and related obligation to carry properly tendered loads in the TIH / PIH category. And the chemical and related TIH / PIH shippers cast themselves as “captive” customers to the railroads with no good alternatives either inside the rail sector or outside it with other modes.

REMARKS – PHMSA, ICAO and lithium batteries on U.S. domestic flights.

Link to post last Wednesday (here, here and here).

Two important points:

1. Lithium batteries are light in weight, small in dimension and ubiquitous in the electronic technology that is a staple of air cargo. 

Unfortunately, two situations push against each other. The non-transportation lay person views them as distinct from “real” hazardous materials – the nasty chemicals that one would expect to require adherence to the Hazardous Materials Regulations.

But the pilots and professional hazardous materials shipping experts associate lithium batteries with powerful combustion events that have reputedly already created real damage to aircraft.

Given their combustibility, lithium batteries present a genuine danger in a setting (aviation) where shipment by air is commercially compelling.

2.  According to PHMSA and FAA rules pre-dating concern with lithium batteries, shippers and carriers have historically enjoyed a choice on domestic airline flights: Comply with the U.S. Hazardous Materials Regulations or opt to comply with ICAO rules. 

For some in the context of movement of lithium batteries by air, this danger forces a “re-think” of the old dual regulation framework – at least as to this sort of freight.

HAZARDOUS MATERIALS / Should shippers and carriers be allowed to choose between U.S. Hazardous Materials Regulations versus ICAO Dangerous Goods rules when transporting lithium batteries by airline domestically?

To date PHMSA has in many situations allowed shippers and carriers of “hazardous materials” (U.S. legal term of art) / “dangerous goods” (international legal term of art) choice to conform either to U.S. Hazardous Materials Regulations or ICAO Dangerous Goods Technical Instructions on the Transport of Dangerous Goods by Air – for domestic freight moves within the United States.

January 7, 2013, Notice of proposed rulemaking; request for additional comment.

As the U.S. DOT Pipeline and Hazardous Materials Safety Administration put it:  Continue reading

HAZARDOUS MATERIALS / U.S. Hazardous Materials Regulations amended to “maintain alignment with international standards” of ICAO (air) and IMO (ship).

As the U.S. DOT Pipeline and Hazardous Materials Safety Administration put it: 

“PHMSA is amending the Hazardous Materials Regulations to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements.” 

January 7, 2013, Final ruleContinue reading

HAZARDOUS MATERIALS / This “responds to administrative appeals” from earlier (1/19/2011) harmonization of U.S. Hazardous Materials Regulations with “international standards for the transport of hazardous materials by all modes.

The earlier harmonization (1/19/2011), “amended the Hazardous Materials Regulations (HMR) by revising, removing or adding proper shipping names, the hazard class of a material, packing group assignments, special provisions, packaging authorizations, packaging sections, air transport quantity limitations, and vessel stowage requirements.” 

January 7, 2013, Final rule. Continue reading

MARITIME / Reporting requirements for barges loaded with “certain dangerous cargoes” (“CDC’s”) – specified very nasty chemical freight – in specified inland rivers: The Mississippi north of Mile 235, the Ohio River and the Tennessee River to the Mobile River – Extension of stay (Suspension) of the reporting requirement

The U.S. Coast Guard has been deliberating on whether or not to enter into a new contract with an outside organization necessary for the U.S. Coast Guard to administer reporting requirements under the Regulated Navigation Area (“RNA”) established under 33 C.F.R. § 165.30 (“Regulated Navigation Area; Reporting Requirements for Barges Loaded with Certain Dangerous Cargoes, Inland Rivers, Eighth Coast Guard District”).

Who is affected? Inland water barge carriers on the specified rivers and those who ship the “certain dangerous cargoes” or “CDC barges” on them.  Continue reading

RAILROAD / Positive Train Control – Federal Railroad Administration proposes to expand exceptions to application of FRA’s original 2010 rule that implements mandates of the Rail Safety Improvement Act of 2008 requiring certain passenger and freight railroads to install positive train control systems.

Who is affected? Railroad carriers and providers of rail rolling stock (locomotives and rail cars).

December 11, 2012, Notice of Proposed Rule Making ):

This is part of the implementation of Positive Train Control (“PTC”) into U.S. railroads pursuant to the Rail Safety Improvement Act of 2008. This notice of proposed rule making is a Federal Railroad Administration response to a petition for rule making dated April 22, 2011 concerning a final rule and clarifying amendments on this promulgated in 2010. That petition was brought by the Association of American Railroads (which is comprised of the Class I railroads) in what amounts to a course correction in PTC implementation. Broadly speaking, this would revise the de minimis exception to PTC rules in various respects, discontinue those signal systems made unneeded by the installation of PTC systems, and otherwise refine the 2010-promulgated rules. Continue reading

REMARKS: MARITIME / “Coast Guard announces revised procedures governing permission to build new waterfront facilities handling liquefied natural gas (LNG) or liquefied hazardous gas (LHG) – or who plan to expand marine terminal operations in such a way as to increase traffic in LNG or LHG” .

From New Rules & Decisions week of November 26, 2012.

Notice of proposed rule making.

Recent LNG & LHG Risk Management from Two Directions 

DIRECTION #1: Risk management of LNG and LHG water transport by various public agencies:

By this week’s final rule reported in “New Rules & Decisions” the U.S. Coast Guard places new burdens on owners and operators of waterfront facilities that handle LNG or LHG. They have to disclose specified information about their future intent to the Captain of the Port at which they operate. The Captain of the Port uses this to issue a letter of recommendation to federal, state and local agencies “having jurisdiction for siting, construction, and operation of the facility” to be involved in transport of LNG or LHG at or near the port.

Here the onus is on government to manage the risk. The private entity simply provides information.

DIRECTION #2: Risk management of LNG and LHG water transport by private firms:

Private firms face liability for harm from LNG or LHG accidents. That liability is exacerbated by a 150-year-old law called the “Limitation of Vessel Owner’s Liability Act. 46 U.S.C. §§ 181 et seq. 

As Monica Hwang, Esq. of King & Spaulding LLP explains:

“This statute limits a vessel owner’s liability in a marine event to the value of his vessel and cargo determined upon termination of the voyage on which the casualty occurred. Thus, the extent of the vessel owner’s liability depends on the extent of the damage suffered. In a truly disastrous situation, the Act can give rise to perverse outcomes. For instance, if a vessel and its cargo are totally destroyed in a situation that causes large damages to third parties, the vessel owner may be able to limit his liability to zero. On the other hand, if the vessel suffered minimal damage (i.e., the vessel and/or cargo still has significant value), the vessel owner’s liability would be significantly higher.”

Ms. Hwang’s write-up concisely outlines the drafting and implementation considerations relating to these agreements. Her observations provide a helpful introduction to the risk management issues facing both terminal owners and operators – and the vessel owners and other third parties who may be liable for harms caused by LNG or LHG accidents.