Bierlein on Hazmat: The UN's Role in Hazmat Rule Changes

You are right to recognize that the starting point for many of the changes to the domestic hazardous materials regulations is the United Nations. Whereas the U.S. Department of Transportation (DOT) is not precluded from making its own proposals or responding to petitions for rulemaking, the widest range of changes are initiated by the UN Committee of Experts on the Transport of Dangerous Goods.

The UN operates on a biennial cycle ending in December of even-numbered years. Their decisions in December 2006 will result in the 15th revised edition of the UN Model Regulations, commonly called the "Orange Book." These changes will cascade through the modal processes of the International Maritime Organization and the International Civil Aviation Organization, with the expectation of international compliance on January 1, 2009.

You may have noted the December 29, 2006, last-second publication by DOT of a final rule in HM-215I. This rule implemented the 14th revised edition of the Orange Book, concluded in December 2004. The U.S. regulations will be adapted in a future version of HM-215 to reflect the more recent UN decisions. One hopes that DOT's rule would come out sooner than the day before international compliance is required, but history is not encouraging.

The 2007-2008 UN biennial work program will include routine adjustments to specific materials and their packaging. Performance standards for UN packaging will get more intense scrutiny, with a particular emphasis on composite IBCs. This work was commenced in the last biennium and included adoption of a vibration test, but several testing issues carried over and are likely to be addressed in each of the four future meetings of the current work period.

We also expect a series of proposals with respect to smaller packaging, particularly for materials authorized as "limited quantities" in non-UN combination packaging. Every hazmat code includes some lesser regulation in recognition of the lower risk involved in smaller unit quantities, but these provisions desperately need harmonizing across transportation modes and countries. The debate also will bring out the views of UN delegates who do not believe any regulatory relief should be granted to any material in any packaging size. This effort will be controversial.

Shipping documents are required under all codes to communicate to carriers and responders to any emergency involving the shipment. In the past, this emergency response need has forced preparation and carriage of actual paper documents, but the UN plans debate on the use of electronic data interchange (EDI), to scale back the need for paper.

Working in parallel with the UN dangerous goods experts are other delegates addressing global harmonization of hazard definitions across all types of regulatory codes, from the manufacturing workplace to consumption and disposal, including all transport in between. This is likely to entail further adjustments to the UN transport regulations, particularly with respect to hazard communication through marks, labels and documents.

Specific additional items for this work period include open cryogenic containers, fumigated freight containers, and harmonization of the UN with the IAEA on radioactive materials. The UN also indicates they will pay greater attention to what happens after their deliberations in Geneva, i.e., who uses the Orange Book and how (or whether) they translate, implement, or enforce it outside Western Europe and North America.

If you need an adjustment to a common regulatory element such as a shipping description, classification, or packaging for your material, please note that the deadline for proposals to the next session of the UN is April 6, 2007.

Lawrence Bierlein is a partner with McCarthy, Sweeney & Harkaway, P.C. (www.mshpc.com), in Washington, D.C. His practice is devoted to issues involving transportation of hazardous materials. He can be reached at (202) 775-5560, [email protected].

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