PHMSA releases enforcement discretion notice

Notice issued due to HM-215N delay

Posted March 1, 2017

On Monday, February 27, 2017, the Pipeline and Hazardous Materials Safety Administration (PHMSA) released an enforcement notice addressing the use of new international standards. In the notice, PHMSA acknowledged it is aware that many shippers and carriers of hazardous materials in international transport are currently offering or accepting shipments made in accordance with the 2017-2018 International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions) and Amendment 38-16 of the International Maritime Dangerous Goods Code (IMDG Code).

Currently, the Hazardous Materials Regulations (HMR) only authorize shippers and carriers to use the 2015-2016 versions of the international standards. The use of the 2017-2018 versions of the international standards has not yet been adopted, due to the delay in the publication of the HM-215N (International Harmonization) final rule.

The notice also states that while PHMSA is deciding on whether to adopt the 2017-2018 versions of the international standards, it will not take enforcement action against any shipper or carrier who offers or accepts for domestic or international transportation, by any mode, shipments using the 2017-2018 versions of the international standards.

PHMSA is permitting the use of both the 2015-2016 and 2017-2018 standards until it rescinds or modifies the notice. The enforcement discretion will be observed by the Federal Aviation Administration, Federal Motor Carrier Safety Administration, Federal Railroad Administration, and the Pipeline and Hazardous Materials Safety Administration. Interestingly, the U.S. Coast Guard, the agency responsible for enforcing these regulations in U.S. waters, is not listed as an agency that will observe the enforcement discretion.

This article was written by Michael L. Atkinson of J. J. Keller & Associates, Inc.

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