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.

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.

Hazmat Alert: Is the Government at Your Door?

The Department of Transportation conducts audits of hazmat compliance at facilities that ship hazardous materials (hazmat).  Because many aircraft parts are hazmats, aircraft parts distributors may find themselves the targets of such investigations.

Over the past 20 years, we have been contacted about hazmat audits being conducted by RSPA personnel (the predecessor to PHMSA), FAA personnel, and even TSA personnel.  It appears that many of these audits are generated by identifying hazmat shipments carried by a carrier (like an air carrier) and then following up on the shipments at their shipping-source.  So if you ship a hazmat, then there is a chance you could be targeted in a random audit.

Many aircraft parts distributors have found these audits to be quite innocuous.  The agent usually wants to see shipping records and may have questions about subjects like training records.  We’ve gotten calls from companies who lost their training records and needed them faxed over immediately in order to satisfy an auditor (when we perform hazmat training, we keep our records for three years so we can justify replacement certificates if they are needed).  Despite the generally innocuous nature of these audits, every fact pattern and every government audit is different, so you should use your own judgment when considering how to respond to the agent who arrives to perform the audit.

You Have a Right to Know

Sometimes the audits are not random – sometimes they are a follow-up of an allegation and they have a specific purpose.  If there is a specific purpose to the investigation, such as a follow-up to a reported hazmat incident, then any person subject to the investigation has the right to know the purpose of the investigation (“the general purpose for which the information or evidence is sought”).  49 C.F.R. sec. 107.305(c).  In our experience, many of these ‘surprise’ visits are really just random inspections.  If that is the case, then he investigator will usually be happy to tell you that in response to your inquiry.

What if they are Investigating a Specific Occurrence?

If the inspection is associated with a specific investigation, then you should seek the advice of an attorney.  Penalties for hazmat infringement can be very high, so anything you can do to defend against, or mitigate, the penalty is good.  And you do not want to suffer a recurrence so you should be examining how to restructure your system to prevent regulatory infringements and other risks.

If an investigation reveals that there was no violation, or that no further action is necessary or warranted, then the person being investigated will be notified when the investigative file is closed.  49 C.F.R. sec. 107.305(d).  This affirmative regulation is actually a great thing for the public, and I wish more agencies would include requirements like this one.

Do I Have to Participate in an Investigation?

Questions about issues like participation help illustrate why it is so important to coordinate with a lawyer.  The regulations require shippers, carriers, package owners (which could include a recipient), package manufacturers/certifiers, repair facilities, and persons reporting hazmat incidents to cooperate in investigations.  Under the regulations, these persons are required to provide certain access to records and information pertaining to the subject of the investigation, and also provide reasonable assistance to the investigator.  49 C.F.R. sec. 171.21(a).  However, these requirements could conflict with a person’s fourth and fifth amendment rights in some circumstances, so careful analysis of the facts is required.

There are additional regulatory requirements imposed on persons who are required to file hazmat incident reports.  They are generally required to respond to such inquiries within 30 days after receipt. This requirement can also conflict with other rights so consulting with a lawyer can be helpful.

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.

Hazmat Registration – Does the Mandate Apply to You?

One of our members recently asked “what is the PHMSA registration program for hazmat shippers?”

PHMSA is the Pipeline and Hazardous Materials Safety Administration.  It is the government entity that establishes hazmat safety regulations for the United States.  As the agency’s name implies, it has responsibility for more than just hazmat regulation.  PHMSA shares enforcement responsibility for the hazmat rules with the modal agencies (like the FAA).  As a consequence, violations of hazmat rules that occur in the context of aviation are often handled by the FAA’s investigators and lawyers, rather than by PHMSA personnel.

PHMSA has a program that requires certain hazmat shippers and carriers to register with the government. They pay a fee and that fee is used for government grants (distributed to states and Indian tribes) for hazmat emergency response planning and training.

So, who must register?  Anyone who offers any of the following hazmats for shipment generally must register with PHMSA (this would also include hazardous wastes; the rule also applies to transporters):

  • Highway route controlled quantity of a Class 7 (radioactive) material
  • More than 25 kilograms (55 pounds) of a Division 1.1, 1.2, or 1.3 (explosive) material
  • More than one liter per package of toxic inhalation hazard material (hazard zone “A” material)
  • Bulk-packaged hazardous material in a packaging having a capacity equal to or 3,500 gallons for liquids or gases or more than 468 cubic feet for solids
  • A placarding-required package with gross weight of 5000 pounds or more
  • Any package that requires placarding

Most aircraft parts distributors are not within the class of parties that need to register with PHMSA.  This is because typical hazmats found in aircraft parts are usually not shipped in ways that would meet one of the required categories for registration.  However, if your business model includes any of the above categories, then you should make sure that you are registered with PHMSA.

%d bloggers like this: