[ID] => 8304
[post_author] => 34
[post_date] => 2017-07-24 13:48:18
[post_date_gmt] => 2017-07-24 12:48:18
[post_content] => REGULATORY REFORM
As part of President Trump’s efforts to cut government regulations and reorganize federal agencies, a Congressional Subcommittee that focuses on hazardous materials transportation issues held a hearing on 26 April 2017 to determine if hazmat safety regulations can or should be updated to encourage innovation and expand business opportunities.
In his capacity as Chair of the Interested Parties for Hazardous Materials Transportation (IP), Paul Rankin (who is also president of the Reusable Industrial Packaging Association (RIPA)) was one of six witnesses invited to brief the House Transportation Subcommittee on Railroads, Pipelines, and Hazardous Materials on the issue. The IP is a coalition of 46 organizations interested in legislative and regulatory issues related to the safety and security of hazardous materials transportation. Other witnesses included representatives of Class I and short-line railroads, hazmat producers, the pipeline industry and rail labor.
In a hearing briefing document prepared by Committee Chairman Jeff Denham (R-CA), he noted: “…the incident rate per million tons of hazardous materials [transported]…has declined by 20.6 per cent since 2002.” However, Denham is concerned that the “burden of regulations” on industry is growing and the number of rules issued by the US Department of Transportation (DOT) has “nearly doubled since 2000”. Denham noted that although transportation safety is his Committee’s top priority, new regulations are not always needed to ensure safety and can, at times, inhibit innovation and the implementation of beneficial new technologies.
Speaking on behalf of The Interested Parties, Rankin told the Subcommittee that the group supports “reasonable regulation” because no hazardous material can be transported “unless authorized by a regulation, special permit or approval”. In addition, the IPs support maintaining the Pipeline and Hazardous Materials Safety Administration (PHMSA) as the central governmental focal point for hazmat regulation.
Rankin explained that harmonized federal and international regulations are needed to ensure the free-flow of hazardous products in commerce. “Imagine if the Nation’s roughly 89,000 local jurisdictions could regulate differently the delivery of a common hazardous material, such as gasoline,” said Rankin in a bid to make the case for federal preemption of hazmat regulation.
The IPs urged Congress to require PHMSA to conduct an annual review of Special Permits and adopt as rules those found to be safe and protective of transportation safety.
The IPs strongly supported PHMSA’s work in various international forums, particularly the UN Sub-committee of Experts on the Transport of Dangerous Goods (UNSCETDG), which is currently chaired by a US DOT representative. The IPs also want to see PHMSA designated the lead agency to the ICAO Dangerous Goods Panel (DGP). Today, PHMSA and the Federal Aviation Administration (FAA) share this responsibility.
A video recording of the hearing can be seen at https://transportation.house.gov/calendar/eventsingle.aspx?EventID=401320.
During his campaign for the Presidency, Donald Trump told the Detroit Economic Club that, if elected, “I will ask each…federal agency to prepare a list of all the regulations they impose on Americans which are not necessary, do not improve public safety, and which needlessly kill jobs. Those regulations will be eliminated.”
When President Trump took office, he wasted little time acting upon his promise. In a matter of weeks, he issued several Executive Orders (EO) and guidance documents which laid the groundwork for a very aggressive regulatory reduction program. Executive Orders are issued by the President, usually as directives to federal agencies, and have the force of law.
EO 13771, ‘Reducing Regulations and Controlling Regulatory Costs’, was issued on 30 January 2017 and establishes two standards affecting future regulatory actions – a ‘2 for 1’ rule and a zero incremental-cost requirement. The 2 for 1 rules states: “[F]or every one new regulation an agency intends to promulgate, the agency must also identify two other regulations for elimination.” The zero incremental-cost requirement says the total costs of all new regulations issued by an agency in 2017 shall be no greater than zero. The only exceptions to the zero incremental-cost rule are existing legal requirements and exceptions authorized by the Executive Branch.
A second Executive Order (EO 13777) was issued by President Trump on 24 February 2017, which requires each federal agency to create an administrative structure sufficient to implement the administration’s regulatory reform agenda. The EO directs agencies to name a Regulatory Reform Officer (RRO) who will be responsible for implementing the Trump reform agenda. In addition, the EO mandates the establishment of a Regulatory Reform Task Force to assist the RRO.
A third Executive Order (EO 13781), issued on 13 May 2017, completes the reform agenda triad and directs federal agencies to develop formal plans for regulatory reform, using input from the public, within 180 days.
The President’s regulatory reform agenda is already behind schedule, in part because hundreds of key agency staff positions remain unfilled. For example, of the 18 senior jobs at the US DOT, the President has filled only the Secretary’s position. Ms Elaine Chao was confirmed by the US Senate in March.
BILL OF LADING
Last summer, the National Motor Freight Traffic Association (NMFTA) issued changes to the US Uniform Straight Bill of Lading (Supplement 2 to NMF 100-AP) that change the legal “burden of proof” for product loss, damage or delay in shipment. The new requirements, which took effect on 13 August 2016, represent a radical change and are “contrary to over a century of law”, says the Transportation and Logistics Council. TLC represents more than 200 shippers throughout the US.
The “old” bill of lading placed the burden to prove freedom from negligence for product damaged, lost or delayed in transportation on the carrier or party in possession of the goods. The “new” bill of lading reverses the burden of proof, so that now the shipper must prove the carrier was negligent.
TLC asserts that only the person in possession of the goods and in control of their movement, i.e. the carrier, can know with certainty the facts of any case involving damage, etc. “The shipper does not ‘ride shotgun’ with the carrier,” says TLC. Therefore, “He has no way to know what the carrier does with the goods.”
TLC has filed a Petition for Suspension and Investigation with the US Surface Transportation Board, which is an independent adjudicatory and economic-regulatory agency that works to resolve rate and service disputes between shippers and carriers. STB denied a request by TLC to suspend or delay the effective date of the requirement, but has agreed to take up the matter in a formal legal proceeding later this year.
Legislation sponsored by Senator John Thune (R-SD) would, among other things, direct the Administrator of the Transportation Security Administration (TSA) to work with the US Coast Guard (USCG) to conduct a risk-based study of “the vulnerabilities and risks to the surface transportation system”. This has passed the Senate Committee on Commerce, Science and Transportation and is awaiting consideration by the full US Senate.
The Surface and Maritime Transportation Security Act (S. 763) has bi-partisan support and is expected to pass the full Senate with few changes. No companion bill has been introduced in the US House of Representatives.
The legislation also would create a Surface Transportation Security Advisory Committee comprised of representatives of key governmental agencies (e.g. DOT, USCG) and industry. Industry representatives would be non-voting and come from all surface modes, including truck, rail and pipeline.
Importantly, the bill would expand the transportation worker identification credential (TWIC) program to cover any person now subject to a credentialing or background security check. This would include persons who have already undergone a background check to obtain a hazmat license. Industry strongly supports the expansion of this program because today a driver needing access to ports and chemical facilities, for example, may be forced to obtain multiple credentials.
Paul Rankin will be reporting from Washington for HCB every quarter; he is happy to hear from readers, who can contact him at firstname.lastname@example.org.
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[post_modified] => 2017-07-24 13:48:18
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In the first of a new regular column, Paul Rankin, RIPA president, summarises current developments in US hazmat legislation