New Hazmat Rules for Shippers

Tomorrow, the Pipeline and Hazardous Materials Safety Administration (PHMSA) will publish a new revision to the United States Hazmat rules.  The new revision is intended to better harmonize United States Hazmat rules with the ICAO Technical Instructions for Shipping Dangerous Goods.  The Technical Instructions are republished by IATA as the IATA Dangerous Goods Regulations and are widely used in the aviation community.

Those who work with standards for cylinders, and those who fill, or service/requalify, cylinders, will want to review these changes carefully.

The changes also better clarify how to identify certain types of vehicles, including remote control aircraft.

Lithium battery special conditions (e.g. special conditions 181-182) are updated.  Section 173.185, which provides the packaging instructions for lithium cells and batteries, is also updated.  Be sure you follow the new labeling and marking requirements!

The new US Lithium Battery Label is authorized for use immediately in 2017

Shippers subject to U.S. jurisdiction are permitted to voluntarily comply with the new rules as of January 1, 2017 (yes, that is three months before the final rule was published).  The mandatory compliance date will be January 1, 2018.

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Where Do I Find Lithium Batteries and How Do I Ship Them?

Lithium batteries continue to be a particular concern in the aviation world.  For many aircraft parts distributors, it is important to be able to recognize the presence of lithium batteries in an article or assembly in order to be able to ensure that the article or assembly is shipped properly.

Some known uses of lithium batteries on airplanes include:

  • Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication management units, and remote-monitor electronic line-replaceable units;
  • Cabin safety, entertainment, and communications equipment, including emergency locator transmitters, life rafts, escape slides, seat belt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;
  • Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

Source: Special Conditions: AmSafe; Non-Rechargeable Lithium Battery Installations, 82 F.R. 14164, 14165 (March 17, 2017).

Once you have identified a lithium battery, you need to ascertain the correct proper shipping name for the battery.  There are currently six main proper shipping names that apply to lithium battery configuration:

  • Lithium Ion Batteries
  • Lithium Ion Batteries Contained in Equipment
  • Lithium Ion Batteries Packed with Equipment
  • Lithium Metal Batteries
  • Lithium Metal Batteries Contained in Equipment
  • Lithium Metal Batteries Packed with Equipment

Each of these proper shipping names leads to a different packing instruction or packing regulation, and different standards for how to identify, package and ship the articles.  Most aircraft batteries are lithium ion, but it is important to properly classify the battery before you ship it.

The rules concerning shipping lithium batteries as hazardous materials (US term) or dangerous goods (international term) have been changing frequently in recent years.  This is meant to ensure that they are shipped safely, based on the latest knowledge.  But these changes in the standards can make compliance difficult.  In order to ensure compliance, we recommend that you always do these things:

  • Before you even consider shipping a hazardous material, make sure you are trained and that your training is current (it’s the law!);
    • We offer a live, interactive, online course for hazmat certification;
  • Pick up the current version of the relevant regulations (e.g. US DOT regulations or the ICAO Technical Instructions) and read the relevant requirements;
  • Read through the packing instruction or packing regulation carefully (yes, even though you know it, read it again, right before using it);
  • Identify what subsection of the packing instruction or packing regulation applies to your shipment (there are usually tw0 [I/II] or three [IA, IB, II] different subsections that could apply in each IATA/ICAO packing instruction – you must choose the correct subsection based shipping configuration factors like mass, watt-hour rating, number of batteries, etc.);
  • Follow the instructions carefully and don’t get mixed-up (when using the IATA DGR Packing Instructions, you should be following the instructions in your proper subsection and also the general instructions at the beginning of the packing instruction that apply to all of the subsections).

On April 5-6, 2017 we will be conducting an online class on how to ship aircraft parts when the parts are characterized as hazardous materials or dangerous goods. The class includes units and exercises designed to help you identify hazardous materials in aviation, in addition to teaching you how to package, identify and ship them.

Those who successfully pass the course will be certified in accordance with US DOT regulations and IATA/ICAO standards.  The class is inexpensive and there are additional discounts for trade association members.  It is also a live, online class.  Since it is taught online, you can participate from the comfort of your own desk, with no need to travel.  Since it is also live, you can ask the instructor questions and get answers immediately.

FAA Reauthorization Sets the Stage for 21st Century Aviation Oversight

I almost published this under the title “Congress Seeks to Privatize Air Traffic Control.”  Because that is the real headline.  And tomorrow, I expect that there will be newspapers that have headlines quite similar to that one.

But for the aviation parts community, the devil is always in the details.  Details like properly completed 8130-3 tags, Spec 106 parts/material certifications, and unusual occurrence statements.

Today, Congress published proposed legislation (known as the AIRR Act) to reauthorize the FAA and the biggest headline in that bill is air traffic control.  But there is plenty in this bill that could affect the rest of the industry.  Here is a quick summary of some items that may affect members of the ASA community:

Sec. 302. Safety Oversight and Certification Advisory Committee.  Congress is establishing an advisory committee that will be responsible for advising the Secretary of Transportation on policy-level issues related to FAA safety certification and oversight programs and activities.

Sec. 311. Aircraft certification performance objectives and metrics.  The FAA shall establish metrics for progress toward increasing certification efficiency, increasing accountability, “achieving full utilization of FAA delegation and designation authorities,” implementing risk management and systems safety principles, increasing transparency, training personnel in auditing systems and maintaining the leadership of the United States in international aviation and aerospace.

Sec. 312. Organization designation authorizations.  Establishes a new provision in the US Code for ODAs.  ODAs shall have a procedures manual, shall be entitled to full delegation of functions approved in the manual, but shall be subject to regular FAA inspection.  ODA holders shall cooperate fully with the FAA oversight activities.  FAA shall establish an ODA Office to coordinate ODA policy and oversight.
Sec. 314. Type certification resolution process.  Requires FAA to set policies and timelines for resolving type certification issues, and for elevating them when they cannot be resolved at the lower levels of the FAA.

Sec. 315. Safety enhancing equipment and systems for small general aviation
airplanes.  Requires FAA to streamline the installation of safety enhancing equipment and systems for small general aviation airplanes in a manner that reduces regulatory delays and significantly improves safety. This is something that the FAA has been working on already so they should be prepared to meet Congressional deadlines.

Sec. 317. Additional certification resources.  If the FAA needs to travel to a foreign country to help expedite the process of acceptance or validation of a US certificate, then the US applicant can reimburse the FAA for travel expenses (which makes it easier for the FAA to contribute to such efforts).  The FAA will have to keep metrics on this, including how often requests from US applicants to enter into such an arrangement were denied.

Sec. 331. Flight standards performance objectives and metrics.  The FAA shall establish metrics for progress toward eliminating delays in flight standards activities, increasing accountability, increasing use of delegation, increasing use of risk management principles, eliminating inconsistencies, and creating a streamlined appeal process for interpretations.

Sec. 332. FAA task force on flight standards reform.  Establishes a task force to study ways to make the Flight Standards Service better, including achieving more consistent regulatory interpretations.
Sec. 333. Centralized safety guidance database.  Create a database of aviation safety documents, with links to the regulations that they interpret.  This will include “acceptable means of compliance” documents.

Sec. 334. Regional Consistency Communications Board.  Establishes a Board that will help harmonize the guidance given by different offices.

Sec. 351. Promotion of united states aerospace standards, products, and services abroad.  This section gives the FAA promotion responsibilities, which were taken out of the law a number of years ago.  This limited promotion authorization is focused on international promotion, like promoting United States aerospace safety standards abroad, and facilitating and vigorously defending approvals of United States aerospace products and services abroad.  It will also reiterate our commitment to working with bilateral partners.

Sec. 352. Bilateral exchanges of safety oversight responsibilities.  Includes a requirement for the FAA to accept foreign airworthiness directives (ADs) issued by bilateral partners.  This could impose an unworkable burden on smaller US companies to track foreign AD proposals, because it will mean that the US companies will have to comment on the foreign AD, because it will have no reasonable opportunity to comment on a US version if the FAA is required to accept foreign ADs.

Sec. 353. FAA leadership abroad.  This will require the FAA to better support US companies in foreign acceptance or validation projects.  one clear element of this will be through increased US engagement with foreign authorities.

Sec. 613. Aircraft registration.  Increase the term of an aircraft registration for a noncommercial general aviation aircraft to 10 years.

Sec. 615. Air transportation of lithium cells and batteries.  The government will establish a committee, and try to make sure that people actually comply with lithium battery shipping requirements.

Reauthorization is often a slow process, but the last reauthorization bill was a six month extension that went into effect October 1, 2015.  That means that the new reauthorization bill is needed by April 1, 2016.  It is possible that this ATC privatization may be contentious (General Aviation groups contend that it is an effort to shift the expense of maintaining the system into their pockets) and that could slow down the progress of the AIRR Act.  If the AIRR Act cannot be passed by April then we could see another temporary reauthorization (e.g. for another six months).  But it is possible that the AIRR Act could move on a fast track, and become law, later this Spring.

Can Factory New Parts Be Hazmat?

Recently, an ASA member asked me whether factory new parts could be hazardous materials.  This is an important question because if the parts are treated as hazardous materials, then they must be shipped in compliance with the hazardous materials regulations.

The answer to the question depends on whether the units have hazardous materials (or dangerous goods) in them when they are shipped.

Some factory new parts are intrinsically hazardous materials.  A factory new self-inflating life raft is likely to be considered a hazardous material because it has a compressed gas cylinder in it, and this makes it a “life saving appliance, self inflating” which is regulated under UN number 2990.

Other articles, though, may be conditional hazmats.  That is, the article may or may not be a hazardous material depending on whether the unit has yet had hazardous material introduced into it.  Fuel system components can be a good example.  After they have had fuel run through them, the fuel residue generally makes the fuel system component a hazardous material (known as “dangerous goods in apparatus”).  But before fuel has ever run through the fuel system component, it may not be a hazardous material.

Reading that last sentence, you may be expressing frustration over a lawyer’s unwillingness to commit.  “[I]t may not be a hazardous material”?  How about taking a stand?

But with some engine components, even a factory new and unused part might be a hazardous material.  Even without fuel residue, new parts and overhauled parts may contain a preservative or calibration fluid that is a hazardous material.  The preservative may be treated as a “petroleum distillate” that is regulated under UN 1268.  Even if the amount that remains is only a tiny residue, this residue in an engine part will cause the engine part to be treated as a “dangerous goods in apparatus.”

One important rule of thumb is that if you can smell a substance in the aircraft part, then there is at least an appreciable residue that remains (that’s what you are smelling).  And if that residue is a hazardous material then the larger article is likely to be regulated as a hazardous material if it is shipped with the hazardous residue.

The best source of information about what is in you parts is going to be the manufacturer, who can tell you what chemicals or other hazards might be found in their part.

Once you’ve identified the chemical(s), the best source of information about the chemical is the manufacturer of the chemical (and their MSDS).  This is usually idfferent from the “OEM of the part.  I once encountered a calibration fluid that the engine OEM said was not a hazmat, but the label on the chemical’s packaging specified that the chemical was, in fact, a hazmat.  We double-checked with the chemical manufacturer and confirmed that the fluid was a hazmat.  So research carefully, and be sure to check what you learn!

Late Civil Penalty Payments Could Halt Your Business

The FAA issues civil penalties.  Sometimes the amount is low and the company agrees to pay the civil penalty even in cases where the penalty is undeserved.  But what happens if you are late paying a civil penalty?  In the past, the U.S. government would become a creditor like any other (albeit one with a lot of lawyers on staff); but after September 7, 2014, the regulations will prevent you from engaging in certain activities if you fail to pay your civil penalty in a timely fashion:

49 C.F.R. Sec. 109.101
* * *
(b) Failure to pay civil penalty in full. A respondent that fails to pay a hazardous material civil penalty in full within 90 days after the date specified for payment by an order of the … Federal Aviation Administration … is prohibited from conducting hazardous materials operations and shall immediately cease all hazardous materials operations beginning on the next day (i.e., the 91st). The prohibition shall continue until payment of the penalty has been made in full or at the discretion of the agency issuing the order an acceptable payment plan has been arranged.

This means that if you are late paying a civil penalty, shipping a hazmat aircraft part would become a violation that warrants a separate civil penalty (even if the shipment is otherwise proper)!

How broad is this limit?  For some aircraft parts distributors, this could be very broad indeed because many aircraft parts are regulated as hazmats.  The preamble to the new rule clarifies that this is intended to halt any activity regulated under the hazardous materials regulations.  This would include shipping of aircraft parts that are regulated as hazmats (also known as dangerous goods).  This includes obvious hazmats like explosive squibs and chemical oxygen generators  but it also includes less obvious articles like:

  • compressed gas cylinders
  • engine and fuel system parts with fuel residue
  • passenger service units with installed oxygen generators
  • avionics or data recorders with back-up batteries
  • batteries
  • self-inflating articles like slides, rafts and life preservers
  • many first aid kits

This highlights the importance of (1) mounting an effective defense to proposed hazmat civil penalties, and also (2) paying civil penalties that have become final in a timely fashion.  Note that appealing the ruling DOES NOT stay the execution of this provision, so if you appeal the ruling, then you will have to ask the appellate court to grant a stay.

49 C.F.R. Sec. 109.101
* * *
(d) Appeals to Federal Court. If the respondent appeals an agency order issued pursuant to Sec. 109.103 to a Federal Circuit Court of Appeals, the terms and payment due date of the order are not stayed unless the Court so specifies.

The new provisions are published in today’s Federal Register at http://www.gpo.gov/fdsys/pkg/FR-2014-08-07/html/2014-18617.htm

Two Sets of Dangerous Goods Declarations? Beware of the Pitfalls!

I recently had a question from a trade association member who was facing a request that worried him.  He was shipping from the United States to a foreign air carrier, and that foreign air carrier uses a freight forwarder so the expectation was that the parts would be sent to the freight forwarder in the United States.  The aircraft parts in question happened to be hazardous materials.  The freight forwarder had asked him to provide two sets of dangerous goods documentation:

  • one Dangerous Goods Declaration from the distributor’s facility to the freight forwarder; and,
  • one Dangerous Goods Declaration from the distributor’s facility to the end user/airline).

For purposes of this article, I will assume that the parts are aircraft parts, are hazardous materials, and that they are destined for an export location.  My answer is that you should investigate your potential liabilities thoroughly, because you generally should not provide two (different) sets of Dangerous Goods Declarations.

Generally, the shipper is responsible for creating the shipping papers (such as the Dangerous Goods Declaration).   49 C.F.R. 171.2(e); IATA DGR 8.0.2.1.

The norm would be that you as a shipper would produce one shipping document from your facility to the ultimate destination. The ICAO and IATA standards anticipate this and specify that the consignee on the Dangerous Goods Declaration does not need to be the same as the consignee on the air waybill (IATA DGR 8.1.6.2 Note). This means that your air waybill can take the goods to the freight forwarder while the Dangerous Goods Declaration takes them all the way to the end customer. When the air waybill takes the goods only as far as the freight forwarder but the Dangerous Goods Declaration and other documents anticipate that the freight forwarder is merely acting as a consolidator, with the ultimate consignee being the different party to whom the goods will be sent, then the freight forwarder should not be treated as a shipper.

In such a situation, the freight forwarder would issue their own air waybill (known as a “house air waybill”) for the consolidated transport from their facility to the ultimate consignee, and the existing Dangerous Goods Declaration would continue to follow the shipment. The freight forwarder may make one or more additional copies of the Dangerous Goods Declaration, because only the first operator was required to receive an original of the Dangerous Goods Declaration (IATA DGR 8.1.2.3.1 Note). There may be a mismatch between the consignor on the Dangerous Goods Declaration (which is you, the original shipper) and the consignor on the air waybill (which may be the freight forwarder); this mismatch is both acceptable and anticipated (IATA DGR 8.1.6.1 Note).

In some rare cases, the ultimate customer asks the shipper to ship only as far as the freight forwarder. This may be done where the ultimate customer knows that it needs the articles but has not yet made a decision about which line station the goods will be sent to (which may be based on scheduling and dispatch issues that are yet to be determined). In such a case the freight forwarder becomes the consignee, and then the freight forwarder becomes the shipper (because you, as the originating shipper, have not been informed of any other final consignee)! In such a case, you should be careful about keeping the responsibilities clear. If the freight forwarder becomes the shipper because of the way that the transaction is structured, this is usually at the request of the ultimate consignee, and you as seller/shipper should be careful not to put yourself in a position where you are creating documents for the freight forwarder, and potentially taking responsibility for the actions of the freight forwarder, in cases where you do not have any control over the freight forwarder’s compliance.

This is an unusual situation that will likely make the freight forwarder uncomfortable.  I have seen this sort of situation arise where the freight forwarder wanted a second Dangerous Goods Declaration completed with a blank consignee.  I recommend that the US-based distributor refuse to provide a Dangerous Goods Declaration with blanks.  One reasons for this refusal is because the consignment could be redirected to a target that would violate U.S. export laws.

I have seen this request for multiple differing copies of the documents arise a number of times in the past. Where the relationship is an ongoing one, and there is a desire to support the wishes of the freight forwarder, one way that our firm has dealt with it is by creating a contract that clearly explains who is responsible for what, and that establishes clear lines of indemnification in case something goes wrong.

Does the Recipient Have Any Hazmat Compliance Responsibilities?

Most aircraft parts distributors know that performing a “pre-transportation function” related to hazardous material (hazmat) shipping will subject them to a compliance requirement under the hazmat rules (and also under the internationally-accepted dangerous goods regulations).  As a consequence, they assume that mere receipt of a hazmat is not a regulated function under those same rules.  But this assumption misses the fact that distributors who receive hazmats may have some liabilities when the parts are imported from outside the United States.

Aircraft parts distributors generally know that that hazmat is an important topic for their shipping departments.  This is because (1) many aircraft parts are regulated as hazmats, and (2) the U.S. hazmat rules apply to persons who offer hazmat for transportation or cause a hazmat to be transported (obviously, the hazmat regulations apply also to those who transport hazmats but that is beyond the scope of the aircraft parts distribution community).

The hazmat regulations specify that when hazmats are impored in the United States, the importer is responsible for ensuring that the exporter (and each forwarding agent) has the compliance information it needs.

(a)    Importer’s responsibility. Except in the case of a shipment from Canada conforming to §171.12a of this subchapter, each person importing a hazardous material into the United States shall provide the shipper and the forwarding agent at the place of entry into the United States timely and complete information as to the requirements of this subchapter that will apply to the shipment of the material within the United States.

Let’s say that an aircraft parts distributor based in the United States purchases an engine from a non-US seller.  The engine is shipped from the non-US location to the US location at which the buyer does business.  The engine is regulated under UN Number 3166 for hazmat purposes.   In such a case, the US buyer has an obligation to provide to the shipper and to any forwarding agent “timely and complete information as to the requirements” of the hazmat regulations.

As a practical matter, if you are in the United States and you are purchasing or obtaining aircraft parts from a non-US source (importing them), then you should

1)      Ask your business partner whether any of the parts may be hazardous matgerials or dangerous goods, and

2)      If the import is a hazmat then communicate the regulatory obligations to your exporting-business-partner, and ensure that they are also communicated to any forwarding agent.

Need more answers about hazmat?  We will be conducting hazmat training for the aviation industry March 11-12 in California and April 24-25 in Florida.

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