Monday, November 24, 2008

HAZMAT Enhanced Enforcement Rule Comments – 11-21-08

As I noted in early October, PHMSA issued a notice of proposed rule making (NPRM) for Enhanced Enforcement Rules for HAZMAT Shipments. While there was one comment posted early in the comment period, it wasn’t until this last week that a significant number of comments were received. Comments were received from: Ameriflight, LLC National Association of Retail Ship Centers UPS In addition to these corporate comments there were a number of form letter comments from operators of retail ship centers, supporting the comments made by their national association. Those comments were submitted by: Jim Brown Michael Thompson Chuck Stegman Bruno Sartini Juan J. Medel Seth Essenfeld Ron Hodges Charles F. McEntee Rajan L. Dorasami Andrew Lange Brad Mochel Ira Jacobson Charles V. Costa Willaim F. Schweiss Pat O’Sullivan Paul T. Newport Carolyn C. Bream Ameriflight, LLC Comments Ameriflight provides cargo feeder flights for companies such as UPS, DHL and Federal Express. They expressed concerns with delays to their tightly scheduled flight while waiting for an inspector to open, inspect and re-close packages for shipment; this is especially critical for shipments containing Class 7 radioactive samples for medical use. They also note that they would not be able to accept packages for shipment that had been incorrectly closed or that lacked security seals. Finally they want to be assured that the FAA will accept financial responsibility for claims for high value items ‘missing’ from opened shipments. National Association of Retail Ship Centers The NARSC represents over thousands of retail shipment centers that serve as drop off locations for carriers such as UPS, DHL and FedEx. They note that these independently operated businesses would be adversely impacted by provisions of this rule. First they note that they would be financially responsible for delays due the federal regulator opening packages. Second they note that they are prohibited by contract from shipping hazmat so would be unable to comply with directions to do so made by federal regulators finding hazmat materials in packages at their facility. In most cases they would be prohibited by lease or zoning regulations from holding any such hazmat material at their locations. UPS Comments UPS would like to see some of the definitions in the rule modified to make them clearer and more specific. For example they would like the definition of ‘agent’ modified to explicitly state that it applies only to Federal officers, not state officers. UPS pointed out that the proposed wording of §109.3(b)(4)(ii) restricting the agents authority to open just outer packagings makes the unwarranted assumption that there will be inner packaging. They proposed wording that would provide legal authority to open packagings that turned out not to have inner packagings. UPS is concerned about the wording of §109.3(b)(5) about preparing the package for re-entry into transportation. UPS believes that the Federal agent that opened the package should be solely responsible for re-closing the package and pre-paring it for re-entry into transportation. This will relieve the carrier for any financial responsibility for claims of loss or damage related to the opening of the package. My Comments on Comments The comments from all three of the corporate responses all seem to raise legitimate issues that need to be addressed in the final rule. What is interesting is the level of assistance each of the comments provides to PHMSA in modifying the rule. The Ameriflight comments only point out problems with the proposed rule. The NARSC comments point out problems and provide general direction on how some of those problems might be addressed. UPS identifies specific problems and provides specific solutions, including proposed wording changes. Now I am sure that PHMSA will give each of the comments the attention required. However, the comments that suggest specific changes are more likely to get adopted in a manner that addresses commenter’s concerns. Even if PHMSA agrees with the commenter’s concerns, they may not ‘adequately’ address those concerns in a manner that will solve the commenter’s actual problem with the proposed rule. Letter Writing Campaigns It is not unusual for organizations to conduct letter writing campaigns in support of a particular stance on legislation or rule making. These can be as simple as providing a post card for members to sign and send to the responsible entity or it can be as sophisticated as outlining the issues involved and suggesting that members write letters explaining how those issues will affect them. I have seen no studies done on the effectiveness of these campaigns, but it would seem to me that the more sophisticated the campaign, the more effective it should be. This would be especially true when the campaign is addressed to a regulatory agency rather than a legislative body. Post card campaigns, for instance, are seldom read; they are just tallied. Numbers of comments are really only important to people that run for election. Even then the numbers must be very large to be effective The letter writing campaign being conducted by the NARSC seems to be a little more sophisticated than the post card effort, but not much. The wording of most of the letters is practically identical. I am sure that PHMSA will deal with them in much the same way as I have. They will glance at them, determine that they are part of the campaign, and put them in an appropriate file. Campaigns like the one conducted by the special effects industry on the hazmat security procedure rule are more effective since each letter is different and must be read to be categorized. A number of the letter writers identified new issues with the rule that would need to be addressed in the rule making process. The effectiveness of any letter writing campaign is enhanced is a legislator or two can be brought into the process. The best example of this is the campaign that was conducted by the propane industry in response to the draft version of Appendix A to the CFATS regulations. The combination of individual letters and political pressure resulted in a significant revision of the proposed rule.

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