HAZARDOUS MATERIALS (ENFORCEMENT) – No an enforcement action; but a proposed change in the rule to bar from transport of any materials regulated by the Hazardous Materials Regulation any party that who fails to pay a civil penalty as ordered for a past violation of the HMR.

“Hazardous Materials: Failure To Pay Civil Penalties” 

Notice of Proposed Rulemaking. September 24, 2013.

Significantly upping the ante on those who are “scofflaws” on their hazmat civil penalty orders.

COMMENT: This bears some study, but the literal language would render illegal operation of whatever transport instrumentality is operated by the entity whose PHMSA penalty civil order remains unpaid. 

One area for consideration: Insurance policies that require operation in accord with applicable law.

Another: A lease the similarly requires operation in conformity to applicable law. 

 

 

RAILROADS & HAZARDOUS MATERIALS / Implementing the MAP-21 statute enacted in 2012, the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Administration (PHMSA) amend both the Federal Motor Carrier Safety Regulations and Hazarouds Materials Regulations, “to prohibit a driver of a commercial motor vehicle or of a motor vehicle transporting certain hazardous materials or certain agents or toxins (hereafter collectively referenced as ‘regulated motor vehicle’) from entering onto a highway-rail grade crossing unless there is sufficient space to drive completely through the grade crossing without stopping”.

“Highway-Rail Grade Crossing; Safe Clearance”

Final Rule. September 25, 2013. 

This is a major development in an area of much safety concern over accidents and also a much-litigated matter in tort cases.

The background here is detailed and complex.

Among other implications: The PHMSA and FMCSA standard set forth here will likely be incorporated into negligence standard of care instructions to juries and to judges as finders of fact under a “negligence per se” theory.

HAZARDOUS MATERIALS (INNOVATION FOR ELECTRONIC INFORMATION) / As authorized by the Moving Ahead for Progress in the 21st Centruy Act (MAP-21), the “[Pipeline and Hazardous Materials Safety Administration] PHMSA invites volunteers for a pilot program to evaluate the effectiveness of paperless hazard communications systems and comments on an information collection activity associated with the pilot program.” The innovation: “Paperless hazardous materials (e-HM) communications systems (e-systems)”. The challenge: All parties – but especially emergency response providers – have historically relied on physical signage and shipping papers when coming into contact with a hazmat incident.

“Paperless Hazard Communications Pilot Program”

“PHMSA invites volunteers for a pilot program to evaluate the effectiveness of paperless hazard communications systems and comments on an information collection activity associated with the pilot program. “Moving Ahead for Progress in the 21st Century Act” (MAP-21) authorizes PHMSA to conduct a pilot program to evaluate the feasibility and effectiveness of using paperless hazard communications systems. In accordance with MAP-21, in conducting the pilot projects, PHMSA may not waive the current shipping paper requirements. In addition, MAP-21 indicates that PHMSA must consult with organizations representing fire and other emergency responders, law enforcement, and regulated entities. Upon completion of the pilot projects, PHMSA must evaluate the feasibility and effectiveness of paperless hazard communications systems and make a recommendation to Congress regarding regulatory changes that would permanently authorize the use of paperless hazard communications systems. The report is due to Congress by October 1, 2014. The intent of this notice is to: (1) Describe the current regulatory requirements for shipping papers; (2) describe authority granted under MAP-21; (3) explain the goal, scope, and intent of the pilot program; (4) seek volunteers to participate in the pilot projects and describe criteria for selecting pilot participants from the volunteers; and (5) seek comment on the request for information to be collected in conducting the pilot projects and in consulting with organizations representing fire and other emergency responders, law enforcement, and regulated entities. Information gathered will enable PHMSA to generate a report to Congress detailing: (1) The performance of each paperless hazard communications system tested during the pilot projects; (2) PHMSA’s assessment of the safety and security impacts on stakeholders; (3) the associated costs and benefits; and (4) PHMSA’s regulatory recommendation(s).” 

HAZARDOUS MATERIALS (IMPLEMENTING MAP-21 STATUTE) / Hazardous Materials – To follow Congress’ direction in MAP-21 / Hazardous Materials Transportation Safety Improvement Act of 2012 (HMTSIA), “[the Pipeline & Hazardous Materials Safety Administration is] proposing in this rulemaking, as described further below, [1] to clarify [U.S. DOT’s] position with respect to perishable hazardous material, by amending the opening of packages provision of the Department’s hazardous materials procedural regulations for the opening of packages, emergency orders, and emergency recalls …. [2] … to codify the statutory notification requirement in HMTSIA by incorporating into the regulations the Department’s current notification procedures from the operations manual. [And] … to add a new provision to address appropriate equipment for inspectors.”

“Hazardous Materials: Enhanced Enforcement Procedures-Resumption of Transportation.”

May 22, 2013. Notice of Proposed Rulemaking.

“On July 6, 2012, the President signed the Moving Ahead for Progress in the 21st Century Act, or the MAP-21, which included the Hazardous Materials Transportation Safety Improvement Act of 2012 (HMTSIA) as Title III of the statute. Public Law 112-141, 126 Stat. 405, July 6, 2012. Section 33009 of HMTSIA revised 49 U.S.C. 5121 to include a notification requirement. Congress also directed the Department to address certain hazmat transportation matters through rulemaking:

  • The safe and expeditious resumption of transportation of perishable hazardous material, including radiopharmaceuticals and other medical products that may require timely delivery due to life-threatening situations;
  • The means by which non-compliant packages that present an imminent hazard are placed out-of-service until the condition is corrected;
  • The means by which non-compliant packages that do not present a hazard are moved to their final destination;
  • Appropriate training and equipment for inspectors; and
  • The proper closure of packaging in accordance with the hazardous material regulations.

“We are proposing in this rulemaking, as described further below, to clarify the Department’s position with respect to perishable hazardous material, by amending the opening of packages provision of the Department’s hazardous materials procedural regulations for the opening of packages, emergency orders, and emergency recalls. The amendment recognizes the special characteristics and handling requirements of perishable hazardous material by clarifying that an agent will stop or open a package containing a perishable hazardous material only after the agent has utilized appropriate alternatives. We are also proposing to codify the statutory notification requirement in HMTSIA by incorporating into the regulations the Department’s current notification procedures from the operations manual. Finally, we are proposing to add a new provision to address appropriate equipment for inspectors. For the remaining mandates to address certain matters related to the Department’s enhanced inspection, investigation, and enforcement authority, we are proposing no additional regulatory changes. We believe that the Department’s current rules that were previously established through notice and comment rulemaking and existing policies and operating procedures thoroughly address the hazmat transportation matters identified by Congress as requiring additional regulations. For instance, in a prior rulemaking, the Department established, in Part 109, procedural regulations for opening packages, removing packages from transportation, and closing packages. These regulations include the definition of key terms, including perishable hazardous material. The regulations address how the Department’s agents will handle non-compliant packages that present an imminent hazard and those that do not. Moreover, the rules address when and how the Department’s agents will open a package. And, if an agent opens a package, there are procedural rules for closing the package and ensuring its safe resumption of transportation, if applicable. In addition, the Department developed an internal operations manual for training and use by its hazmat inspectors and investigators across all modes of transportation. The operations manual’s guidance is intended to target and manage the use of the enhanced inspection and enforcement authority in a uniform and consistent manner within the Department. At this time, we do not have any data or other information that indicate the rules, policies, and operating procedures currently in place are inadequate or that additional regulations are necessary.”

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.”

PIPELINE SAFETY (ACCIDENTS & INCIDENTS) / PHMSA announces availability of new on line forms for reporting of pipeline “accidents” and “incidents”.

March 7, 2013, Notice Of Online Availability Of Revised Incident And Accident Report Forms And Request For Supplemental Reports.

“In December 2012, PHMSA revised forms PHMSA F 7100.2—Incident Report—Natural and Other Gas Transmission and Gathering Pipeline Systems and PHMSA F 7000-1—Accident Report—Hazardous Liquid Pipeline Systems. These revised forms are now available for electronic submittal in the PHMSA Portal. As described in this notice, PHMSA requests supplemental reports to improve the quality of the incident and accident data.”

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

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