22 Spray September 2015 Steven CharleS hunt President, ShipMate, Inc. From here to there: Topics in Transportation The Golden Rule of shipping… It’s not a rule until it’s a Final rule In the October 2014 issue of Spray, I described the Notice of Proposed Rulemaking HM-253, published on Aug. 11, 2014 (79 FR 46748), which proposed revisions to the U.S. Department of Transportation’s (DOT) Pipeline & Hazardous Materials Safety Administration (PHMSA) Hazardous Materials Regulations (HMR) for return shipments of certain hazardous materials by motor vehicle, commonly referred to as the “Return Logistics Rule.” In this proposal, PHMSA defined “reverse logistics” for dangerous goods that are intended to be returned to, or between, a vendor, manufacturer, distributor or other person for the purpose of returning for credit, recalling product, replacement or other reasons. PHMSA proposed the creation of a new section within the HMR (49 CFR §173.157—Reverse Logistics—General Requirements & Exceptions) that would provide an exception for certain hazardous materials that are transported in a manner that meets the definition of “reverse logistics.” However, it appears that some companies may have assumed, erroneously, that the Notice of Proposed Rulemaking was, in fact, a Final Rule and have prepared shipments to return to manufacturers and distributors under the relaxed rules. I recently intercepted a fairly large shipment of aerosol cans that was intended to be shipped back to the supplier under these provisions. Fortunately, they were not put into the transportation chain and are still awaiting disposition pending the approval of the DOT Final Rule, which is not expected until the third or fourth quarter of this calendar year. A word of caution here: know the Golden Rule! The Golden Rule is: it’s not a rule until it’s a final rule. It typically takes a year or more for a proposed rule to become a final rule. The DOT is generally required (with a few limited exceptions) to publish an Advanced Notice of Proposed Rulemaking (ANPRM), followed by a comment period, after which the DOT takes into account comments from the regulated industry and public, petitions for reconsideration or letters in support of the proposed rule. Following that, the agency will then publish a Proposed Rule that takes into account the comments received, additional proposed changes and harmonized codes (if any). Another comment period is generally offered following the Notice of Proposed Rulemaking (NPRM) and then the Final Rule is published. In most cases, the DOT will offer a generous “phase-in period” of between six months and three years. In the case of the changes to the Consumer Commodity ORM-D requirements, the DOT offered a very generous extension of time (eight years) until the mandatory compliance date. Current Regulations Currently, the HMR do not provide any specific exceptions for shipments made in the reverse logistics supply chain. Consequently, all hazardous materials shippers should be forewarned that consignments from a retail outlet back to the distribution facility are subject to the same requirements as when they were originally shipped. The retail outlet is responsible for ensuring that the goods are properly marked, labeled, described, packed, packaged, stowed, segregated and declared for transport. The penalties for violating these rules can be quite substantial. Although one might be able to successfully argue that it is the intent of the DOT to relax these rules, a civil penalty may still be assessed. Any penalties under the current guidelines would, presumably, be mitigated downward, but not dismissed outright. In other words, if you jump the gun, you can still be disqualified. Reverse Logistics Rule Summary Even though the proposed rule was already published in Spray, I would encourage readers to go back to the October 2014 article and review the proposed Reverse Logistics Rule. I’ve offered a quick summary of the rulemaking below just in case: PHMSA will create a new section, 49 CFR §173.157— Reverse Logistics—General Requirements & Exceptions, which authorizes a limited number of hazardous materials, including: (1) Division 1.4S and 1.4G fireworks, flares and signals and ammunition; (2) A Class 3, 8, 9, Division 4.1, 5.1, 5.2, 6.1, 6.2 material contained in a packaging having a gross mass or capacity in each inner packaging not exceeding: (i) 0.5kg or 0.5L for a Packing Group I material; (ii) 1.0kg or 1L for a Packing Group II; (iii)5kg or 5L for a Packing Group III, or ORM–D material;
Spray September 2015
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