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PHMSA Issues Notice on “Enforcement Discretion” and International Dangerous Goods Transport Regulations

The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) just released the attached Notice regarding their “enforcement discretion” for offerors and carriers offering or accepting shipments made in accordance with 2017-2018 International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air and Amendment 38-16 of the International Maritime Dangerous Goods Code. The Notice also can be found on PHMSA’s website.

According to the Notice:

  • PHMSA “will not take enforcement action against any offeror or carrier who is using the 2017-2018 versions of these standards when all or part of the transportation is by air with respect to the ICAO Technical Instructions, or all or part of the transportation is by vessel with respect to the IMDG Code.”
  • PHMSA also “will not take enforcement action against any offeror or carrier who offers or accepts for domestic or international transportation by any mode packages marked or labeled in accordance with the 2017-18 versions.”
  • Use of either the 2015-2016 standards or the newer standards is authorized until the Notice is rescinded or otherwise modified.
  • The enforcement discretion will be exercised by the Federal Aviation Administration, the Federal Motor Carrier Safety Administration, the Federal Railroad Administration, and the Pipeline and Hazardous Materials Safety Administration.

This means the new lithium battery mark and new lithium battery Class 9 hazard label may be used when shipping from, to, or within the U.S.

Earlier this month PRBA sent a letter to Secretary of Transportation Elaine Chao that was signed by 22 corporations and trade associations in which PRBA sought the earliest possible approval and publication of the HM-215N Harmonization Final Rule in order to harmonize the U.S. hazardous materials regulations with international dangerous goods regulations that took effect on January 1, 2017. While it appears the HM-215N Final Rule is still bogged down in the Trump Administration’s “regulatory freeze,” this Notice on agency enforcement discretion is a very positive development in response to the industry’s letter.