On October 1, 2020, the Pipeline and Hazardous Materials Administration (PHMSA) issued a Notice of Enforcement Policy Regarding International Standards. The Notice addresses the anticipation that PHMSA will not complete a Notice and Comment period for the next international harmonization rule, generally under the HM-215 series rulemaking, before January 1, 2021. Currently, the US Hazardous Materials Regulations permit the use of the 2019-2020 International Civil Aviation Organization Technical Instructions on the Safe Transportation of Dangerous Goods by Air (ICAO Technical Instructions) and Amendment 39-18 of the International Maritime Dangerous Goods Code (IMDG Code) by air and vessel, respectively, when prepared, offered and transported in accordance with 49 CFR, Part 171, Subpart C. However, the 2021-2022 ICAO Technical Instructions become effective January 1, 2021, with no general transition period. Although the exact release of Amendment 40-20 of the IMDG Code has been delayed, it would normally be available for voluntary use as of January 1, 2021 as well. Without reference to these new versions in the US Hazardous Materials Regulations (HMR), shippers and carriers would be placed in the difficult position of not being able to use the newest versions of the international regulations in the US when they become effective (after December 31, 2020).
In the Notice, PHMSA indicates that while they are continuing to review the specific changes adopted in the 2021-2022 ICAO Technical Instructions and in Amendment 40-20 of the IMDG Code, PHMSA will not take enforcement action on shippers (offerors) or carriers (operators) that offer for transport or transport hazardous materials prepared in accordance with the new international standards as long as:
- The shipments are in compliance with the 2021-2022 ICAO Technical Instructions or Amendment 40-20 of the IMDG Code, and
- Part or all of the movement occurs by air when using the 2021 ICAO Technical Instructions, or
- Part or all of the moment occurs by vessel when using Amendment 40-20 of the IMDG Code, and
- All other relevant parts of the HMR are met.
The Notice does not contain an expiration date. But it is anticipated the Notice would be superseded when the next harmonization rule (HM-215P) is issued as a Final Rule.