Contents Pages :

Volume 21, Number 1

In This Issue  

Summary of U.S. D.O.T. Rule & Rulemaking Activity 

PHMSA PENALTY VIOLATIONS:  U.S. DOT, PHMSA CLOSED PENALTY CASES   

U.S. DOT Letters of Interpretation of the Hazardous Materials Regulations: March and April 2010. Forty-two letters sorted, indexed and provided verbatim.

HAZMAT TRANSPORTATION GUIDANCE

Permanency of UN specification marks on a drum

Using the same test samples for all required design tests

DOT HMR and IMDG Competent Authority Approvals

Poison-inhalation-hazard (PIH) materials in § 172.313(a) for non-bulk and bulk packages

ERI provider name and offeror name with ER telephone number

LITHIUM BATTERIES

On January 11, 2010 PHMSA issued its notice of proposed rulemaking on lithium batteries. The NPRM essentially reflects the plan FAA/PHMSA unveiled last fall at the instruction of Congressman Oberstar, Chairman of the House Subcommittee on Transportation and Infrastructure. The comment period for the NPRM closed on March 12, 2010 and well over a hundred comments were submitted, many from atypical commenters from a hazmat rulemaking perspective.  Commenters included retailers, medical device manufacturers, foreign governments, members of Congress, the Small Business Administration and the National Transportation Safety Board as well as the more usual commenters on PHMSA rulemakings.   For the most part commenters focused on the major issues, apparently in the hopes that PHMSA will back off of this proposal. In this report, Mr. Wybenga takes a look at the comments that were submitted and presents his analysis on the subject.

UN RECOMMENDATIONS

Agenda Summary for the 37th Session of the Sub-Committee of Experts on the Transport of Dangerous Goods

The UNECE Sub-Committee of Experts on the Transport of Dangerous Goods will be meeting in Geneva on June 21st, 2010 for a ten day meeting on a variety of transportation issues. The provisional agenda for this, the 37th session, has been set and there are 43 proposals that will be discussed at this meeting. These proposals, if adopted, may have a future impact on the rules and regulations governing the shipment of hazardous materials transportation internationally and in the United States. Mr. Coyle’s report summarizes the 43 proposals to be reviewed during this, the third, meeting of the UNECE Sub-Committee of Experts on the Transport of Dangerous Goods during the 2009/2010 biennium.

SPECIAL PERMITS

On April 22, 2010, the House Transportation and Infrastructure Committee held an oversight hearing on the Pipeline and Hazardous Material Administration’s special permits and approvals program. The hearing was a follow-up to the hearing conducted last September. It also addressed the new Department of Transportation Inspector General’s report that includes a look at shortcomings in the explosives classification approval program. In this report, Mr. Coyle outlines the concerns of the HTIC and PHMSA’s response to these criticisms.

HAZMAT CLASSIFICATION

On April 5, 2010, PHMSA issued an Advanced Notice of Proposed Rulemaking on combustible liquids.  The ANPRM suggests that it is PHMSA’s intention to conduct a comprehensive review of combustible liquid regulations. The HMR requirements for combustible liquids predate DOT’s efforts to harmonize US domestic requirements with the international regulations in the 80s and 90s.  The considerable relief they provide domestic shippers and carriers in the case of combustible liquids in nonbulk packagings and the more conservative regulation of higher flashpoint liquids in the case of bulk packagings were the primary driving forces for maintaining differences at that time. In this report, Mr. Wybenga summarizes the NPRM and reviews the industry petitions that prompted PHMSA to undertake a review the requirements, and also reviews some of the problematic aspects of the proposed changes.

HAZMAT SECURITY

On March 22nd, a Senior Technical Advisor at DHS’s Office of Infrastructure Protection, made a presentation that provided a detailed look at how the Department looks at IST. This presentation was an attempt to engage industry experts in a dialogue on how to develop a workable IST program. This proactive IST vision includes a look at how IST could be included in the current program, as well as how it could be adapted to fulfill the more robust requirements being discussed in the legislative process. In this report, Mr. Coyle overviews the role IST already plays in the CFATS program and looks into the ways in which this role will increase in the future, specifically the potential creation of an IST program for CFATS.

PACKAGING

U.S. Ban On Greater-Volume, “Non-Bulk” Packaging Faces A Challenge
By Jerry W. Cox, Esq.

Federal regulators appear ready for a court challenge to a 1991 ban on certain U.N. standard packaging, despite claims that the Pipeline and Hazardous Materials Safety Administration (“PHMSA”) acted unlawfully and violated the agency’s congressional mandate. According to Acting Chief Counsel, PHMSA prohibits certain packaging with a capacity for solid hazmat greater than 450 L because it does not fit within the regulatory definition of “non-bulk packaging.” In this report, Mr. Cox lends his opinions on the legitimacy of the PHMSA rule and explains why he thinks it should be challenged.

FOOD SAFETY

On April 30, 2010, the Food and Drug Administration (FDA) published in the Federal Register an advance notice of proposed rulemaking (ANPRM) addressing potential regulations “setting forth sanitary transportation  practices to be followed by shippers, carriers by motor vehicle or rail  vehicle, receivers, and others engaged in food transport” (75FR22714). This ANPRM focuses soliciting comments and information on the risks to the public of transporting non-food products and materials, including hazardous materials, via tank trucks, rail tank cars, cargo tanks and trucks on subsequent shipments of food products. Mr. Coyle’s report outlines the changes proposed in this ANPRM

COMMENTS ON DOT INTERPRETATIONS

Comments on Significant Letters of Interpretation of the HMR  
By Frits Wybenga, Senior Technical Advisor

- Inclusion of the Offeror’s Name in Association with the Emergency Response Information Provider
- Use of a Label for UN Marking Drums
- Including “RQ” on shipping papers and packages of radioactive materials
- HazMat Training of Unloading Facility Personnel
- Subsidiary Risk Labelling

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