Effective October 1, 2010, PHMSA may begin to issue violations for failure to institute new practices in order to fully comply with new rules and procedures.

For instance, PHMSA is adopting new criteria for the 24-hour Emergency Response System (ERS). The new regulation requires shippers of hazardous materials to include their ChemTel issued ‘Contact Number’ on the face of the shipping papers alongside the ChemTel emergency response telephone number. Going forward, a company registered with an emergency response provider must clearly, expressly and prominently identify itself by full name or contract number, preferably both, on shipping papers.

PHMSA’s rule to modify its transportation security plan requirements applicable to commercial transportation of hazardous materials by air, rail and highway, also becomes effective October 1, 2010. The expressed purpose of the modification is to narrow the list of materials subject to the security plan requirements; however, in practice, it provides no relief to the fireworks industry given the fact that the original quantity thresholds triggering compliance remain unchanged: i.e, (i) any quantity of 1.1g, 1.2g, 1.3g explosives and (ii) 1.4g explosives in quantities that require safety placards. The exception for 1.4g explosives benefits the small operator transporting loads of less than 1,000 lbs.

Going forward, the security plan should identify the senior executive responsible for implementing the security plan, along with a description of the duties of each plan member. Seemingly, the express identification requirement will expose certain employees to liability and, consequently, it is recommended that you consult your insurance agent/broker about the need for coverage for these individuals and, possibly others. These new requirements are in addition to satisfying the original disclosure requirements relating to personnel, facility and en-route security. All facilities subject to PHMSA’s provisions are required to annually review their security plans

Most recently, PHMSA announced that it will abolish the current five-year expiration period for fireworks; PHMSA intends to automatically reissue EX approvals for all approvals expiring in 2010 and no further action on the part of the approval-holder is required.

Hours of Service (HOS) continues to be a significant industry-wide issue. According to a recent inspection of driver’s logs to find instances of false entries, as part of compliance reviews of short- and long-haul carriers; significantly, the violation is cited in 28% of all compliance reviews. Interestingly, the violation was less common among compliance reviews of carriers operating exclusively within a 100-mile radius of their place of business (this may be due, in part, to the use of time cards in lieu of a grid log for this group of carrier). In conclusion, studies have established that false log violations are most common among carriers operating exclusively beyond the 100-mile radius. Moreover, while the compliance review data suggests that this violation is committed fairly frequently, it is not easily detected at roadside inspection; these violations are more commonly issued during a compliance review.

In conclusion, the rumor that changes are occurring at PHMSA appears to be true. It is further recommended that all persons that transport explosive materials review their security plan and training measures with a professional to identify and correct deficiencies, as well as a preventive measure.


© 2016 Creadore Law Firm All Rights Reserved.

Creadore Law Firm