Monday, December 15, 2008

HAZMAT Enhanced Enforcement Rule Comments – 12-05-08

A week has passed since the comment period ended on the Pipeline and Hazardous Materials Safety Agency and the comments are still coming into the Regulations.Gov web site, though at a much slower pace. Since the last blog reviewing comment submissions (see: “HAZMAT Enhanced Enforcement Rule Comments – 12-05-08”) there have been three corporate comments and 1 comment supporting the comments made by National Association of Retail Ship Centers. This will probably be the last blog in the series. The three corporate comments were received from: Reusable Industrial Packaging Association Arkema Inc Dangerous Goods Advisory Council The single comment supporting the NARSC was another form letter submission, bringing the total to 36. It was received from: Don VonderBurg Reusable Industrial Packaging Association Comments The RIPA did not believe that the definition of ‘freight container’ does not need to contain a volumetric capacity and proposed an alternative definition for this term. RIPA suggests that DOT should circumvent the requirements for inspectors to reclose a packaging using the ‘manufacturer’s closure instructions’ (since they would probably not be available to the inspector) by just requiring the inspector to use an ‘approved PHMSA closure method’. RIPA believe that packaging manufacturers, reconditioners or distributors should be held liable for failure of a packaging after it has been opened and reclosed by a DOT inspector. Arkema Inc Comments Arkema would like clarification of what would cause an inspector to be ‘suspicious of packages’. They would also like clarification of how an inspector will know what the manufacturer’s instructions are for closing packages. Dangerous Goods Advisory Council The DGAC is concerned about carriers, shippers or receivers being held responsible for ‘unacceptable safety performance’ of inspectors while opening packagings. DGAC believes that DOT should ‘unambiguously’ identify who is responsible at each stage of the inspection, packaging opening/reclosure, storage and return to shipping process. DGAC recommends that package opening inspections should only be made at the shipper’s or consignee’s location, not at roadside stops. DGAC questions how the DOT inspectors will identify or select ‘appropriate facilities’ for conducting evaluations of packagings and identifications of shipped materials. DGAC has numerous concerns about the ‘Out of Service’ provisions in the rule and specifically notes that any time an inspector stops or removes a package in transit, it is in effect ‘Out of Service’ DGAC believes that the ‘cost to industry’ estimates are ‘grossly understated’ and provide an example of one of their member companies that could incur costs of $100,000 for a single opened package. DGAC suggests that a supplementary NPRM be issued once the comments made to this NPRM are addressed and the rule is revised. My Comments on Comments The comments from both RIPA and DGAC identify some serious shortcoming with the proposed regulations; most of which have been identified previously. As always, I think that anyone that identifies a problem and then proposes a specific response, as has been done by RIPA, makes it more likely that they will be taken seriously by regulators. It certainly is no guarantee that the proposed wording will be accepted, but it will increase the chances. DGAC’s recommendation that a new NPRM be issued after the rule is re-written would normally be a non-starter; that require too long an increase in the time necessary to get a regulation into effect. In this case where there is a new administration that will be doing the issuing of the regulation, I think it is much more likely that a new NPRM may be issued. Still it will depend on how much the new administrators pay attention to the comments of the industry.

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