Three rulings from the U.S. Department of Transportation's (DOT) Research and Special Programs Administration have riveted the attention of Larry Bierlein, a partner with the Washington, D.C. legal firm McCarthy, Sweeney, and Hackaway and general counsel to the Association of Hazmat Shippers. Of paramount importance, HM215E updates U.S. regulations to make them compatible with international rules. Although published in 2003, this final rule has a mandatory compliance date of Oct. 1, 2004. "For some companies, it changes how they describe and package products," notes Bierlein.

This is just the beginning of a process that will eventually harmonize hazardous materials shipments worldwide. For example, according to Bierlein, the United Nations (UN) is rewriting rules on what is called limited shipments. "They are trying to make the rules uniform globally," states Bierlein. "That would mean more stringent rules in the U.S., particularly regarding shipping documentation-the most costly change. Products such as aerosol cans, perfumes, nail polish, etc. are not heavily regulated in the U.S. If the UN prevails, shippers in the U.S. will have to meet a tougher standard-one we don't need," argues Bierlein.

Seeking global harmony

Even though GlaxoSmithKline will be affected by HM215E, Jim Hendricks, manager of dangerous goods safety with the pharmaceutical giant, is a fervid supporter of harmonization of global hazmat shipping rules. "HM215E is definitely a move in the right direction. GlaxoSmithKline has more than 100 facilities in forty plus countries," says Hendricks. The current system allows uniquely different and sometimes conflicting regulations in neighboring countries; having one universal system will promote compliance as well as safety to people, property, and the environment."

"And there are financial advantages to harmonizing systems," Hendricks continues. "If we all work off the same system, including marking, labeling, and transportation regulations, we won't have a consignment moving from country A through country B to country C dealing with three different systems. It would eliminate the need to reconfigure the consignment, possibly repackage, or change hazmat warning labels. It would save the resources and manpower used to handle these changes," he adds.

Hendricks expects achieving global harmonization to be challenging. But he feels countries that do not move to a worldwide system will put commercial enterprises within their borders at a disadvantage. "It forces their companies to work with multiple systems. In general, harmonization would help all corporations by presenting one set of rules for everyone," he suggests.

Where's the pain?

"While I'm wholeheartedly behind one standardized system, harmonization of shipments of limited amounts of hazardous goods is interpreted differently in other countries," Hendricks explains. "In general, consumer commodities are innocuous small containers and the quantity of containers per package is limited. The regulations should provide relief for these shipments based on risk assessment."

"Although there may be some pain in the transition, if the end result is a harmonized system, it's hard for me to argue against that," admits Hendricks. "Yet, some companies will pay a price for global harmonization. It will cost shippers resources, sweat, and pain to change from hundreds of domestic systems to one standardized system. Companies that only ship domestically might well wonder why they have to change their system to match global standards, but it's for the overall good," he concludes.

Total global harmonization is a long-term goal. It has taken 10 years to reach this point, according to Hendricks. And, it's at least five more years to the first iteration-to get to the starting point. "Then we have to drill down to the detail," he adds.

Hendricks' role at GlaxoSmithKline is to anticipate needs and to begin moving the company's safety, compliance, and quality systems in the right direction. "I set the tone that allows us to make as many moves as we can toward harmonization before the actual launch. The only problem is getting all the regulatory agencies to come on board. Some have made more progress than others," he notes.

Progress or peril?

Progress as defined by one regulatory agency raises concerns regarding others. "In final rule HM223, published in October 2003, DOT decided to define the scope of its rules more narrowly," explains Bierlein. "Some areas will no longer be DOT regulated. Other agencies, particularly the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA), will undoubtedly fill the void."

The area most affected is bulk hazmat shipments by rail tank car. DOT will no longer regulate rail cars that have been left at the site to be unloaded by the consignee. Bulk by highway is not affected because the driver usually stays and unloads his/her own truck, so it's still considered in transportation, according to Bierlein.

With HM223 effective October 1, 2004, OSHA and EPA are expecting to produce their own regulations covering unloading tank cars, and therein lies potential for chaos, according to Bierlein. "As DOT leaves the field, with it will go the concept of preemption," he states.

DOT's hazmat security rules preempt regulations enacted by states, counties, and local jurisdictions. Not so with OSHA and EPA. Not only do they not preempt local municipalities, they are under no obligation to be consistent. If a municipality says, "You cannot come through here with anything larger than a 55-gallon drum, or no hazmat at all," shippers must comply, Bierlein points out. "There are 32,000 municipalities or regulatory districts in the U.S. and they are all likely to be different. At this point, a shipper's only recourse is to call his/her Congressional representative," urges the attorney.

More paperwork and cost

Hazmat shippers are about to receive another jolt from Congress. The law under which DOT operates-the Hazmat Implementation Act-is being rewritten to raise all penalties. Bierlein has tracked its passage by the House and Senate and is eyeing the committee ironing out the differences. With final approval and the president's signature looming, penalties will triple. "Currently, penalties average about $30,000 per violation. Under the pending law, penalties will be up to $100,000 per violation," notes Bierlein.

While shippers can expect costs to rise soon, carriers will find their paperwork burden a little heavier when HM229 becomes effective July 1, 2004. "This docket requires more detailed incident reporting. If a shipper attempts to ship hazmat without proper documentation or without notifying the carrier, the carrier must file a report," explains Bierlein. "If a carrier doesn't catch the unreported hazmat shipment at the gate, the carrier can be prosecuted along with the shipper who offered it improperly."

While carriers and shippers share the added cost of new hazmat regulations, they're moving toward a worthwhile goal, a globally harmonized system for hazmat shipments.

Sidebar: The World Trade SAVVY TRADER

DOT is a good resource for hazmat shippers The Hazardous Materials Safety office responds to requests for interpretation of regulations, inconsistency rulings, and non-preemption determinations, according to Joe Delcambre, public affairs specialist with the U.S. Department of Transportation's (DOT) Research and Special Programs Administration. The office conducts public hearings in conjunction with regulatory changes, issues exemptions where appropriate, and makes final determinations regarding registration approvals and reconsideration petitions. Information is available online at http://hazmat.dot.gov.