UN 3548: New Rules for Articles Containing Miscellaneous Dangerous Goods (e.g. articles with hydraulic fluid)

April 11, 2024 by Leave a comment

For those of you who’ve taken our hazmat shipping class, you know that when there is a conflict between the United States rules and the ICAO/IATA rules, if the United States forbids the shipment then you must follow the United States’ prohibition. A recent conflict between US rules and ICAO technical instructions just got resolved by a Final Rule published yesterday.

This new rule permits the transport by air of articles like aircraft landing gear parts that contain hydraulic fluid.

This issue has arisen for UN 3548 (Articles Containing Miscellaneous Dangerous Goods, N.O.S.) and also UN 3538 (Articles Containing Non-Flammable Non-Toxic Gas, N.O.S.). The shipping provisions for UN 3538 and UN3548 forbid shipment by both passenger aircraft and by cargo aircraft. This prohibition can be found in both the U.S. regulations and the ICAO (IATA) Technical Instructions. But there is a special provision in the ICAO Technical Instructions that permits shipping the goods by air if the only hazardous material in the article is either (1) an environmentally hazards substance, (2) a division 2.2. gas with no subsidiary hazards, (3) a “section II” lithium battery and an environmentally hazards substance, or (4) a “section II” lithium battery and a division 2.2. gas with no subsidiary hazards.

In each such case, the special provision number must be declared in the shipper’s declaration for dangerous goods and there is a packing instruction that must be followed:

  • Packing Instruction 222 for Articles Containing Non-Flammable Non-Toxic Gas, N.O.S. (per Special provision A225)
  • Packing Instruction 975 for Articles Containing Miscellaneous Dangerous Goods, N.O.S. (per Special provision A224)

These two special provisions permitted shipment by air (outside the U.S.) where the shipment appeared to be forbidden. Each special provisions was intended to apply to the transport of large articles containing a non-flammable, non-toxic gas or environmentally hazardous substances only under the specified conditions.

A conflict arose because the United States did not have these same special provisions, so shipment by air of UN 3538 or UN 3548 was simply forbidden in the United States. That issue was remedied with the publication (yesterday) of a final rule adding special provisions A224 and A225 to the United States regulations (and applying each of them to the applicable hazmat proper shipping name and UN number). So now these two UN numbers can be shipped by air (under the limited permissions of the two special provisions).

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“Dangerous Goods in Articles:” The Proper Shipping Name is ALMOST Ready to Be Used in the United States

September 17, 2021 by Leave a comment

I was looking at the list of major changes for next year’s IATA Dangerous Goods Regulations. I noticed that the major changes include expanded reliance on the new proper shipping name “Dangerous Goods in Articles.”

As a reminder, Hazmat shippers in the United States should NOT YET be using the proper shipping name “Dangerous Goods in Articles.”

This is a technical variance in what the law allows, but current use of the term in the United States as if it were a hazmat proper shipping name is not permitted, and could become the subject of an enforcement action.

The way that U.S. hazmat regulations work, is that you need to comply with the US regulations, for example, when you choose a proper shipping name for your package, it must be an authorized name. Right now, “Dangerous Goods in Articles” is not an authorized proper shipping name under U.S. law.

You are permitted to rely on the ICAO Technical Instructions when shipping things by air (except where prohibited). When US law permits reliance on an alternative source, that source must typically be incorporated by reference in the U.S. legal structure, which means that typically a specific edition or revision must be referenced. The specific edition of the ICAO Technical Instructions that is currently incorporated by reference is the 2019-2020 edition, which is incorporated at 49 C.F.R. § 171.7.

In the 2021-2022 revision, ICAO published a proper shipping name that will be quite useful to the aviation community: “Dangerous Goods in Articles.” The problem is that IATA immediately included this in the 2021 IATA Dangerous Goods Regulations, but the United States did not immediately incorporate the new ICAO edition by reference.

It is worthwhile to remind the reader that despite bearing the name “regulations” in the title, the IATA Dangerous Goods Regulations are not actually regulations. They reflect a ‘field manual’ for compliance, and they are based on the ICAO Technical Instructions.

The United States regulations still reference the 2019-2020 edition of the ICAO Technical Instructions as the edition that is currently permitted to be used for compliance.

The United States is taking steps to incorporate by reference the 2021-2022 edition (which includes the new term). The Notice of Proposed Rulemaking that will accomplish this was published on August 10, 2021. If you have a comment to share, then you may wish to submit it to the Pipeline and Hazardous Materials Safety Administration. The proposed rule is open for comments through October 12, 2021.

As far as timing goes, there is a good chance that the final rule incorporating by reference the 2021-2022 ICAO Technical Instructions will be published by the end of 2021. And when it is, we should be authorized to use “Dangerous Goods in Articles” when shipping by air. That same U.S. rule making project is also expected to add “Dangerous Goods in Articles” to the United States’ list of proper shipping names in the hazardous materials table (permitting more general use of the term). But that step hasn’t been taken yet.

So please, be patient and wait. The new proper shipping name is coming!

Looking for more hazmat compliance advice? We will be teaching a live, online, hazmat class for shippers of aviation goods next month (October 6-7). See our hazmat training webpage for more details!

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Another Reason for Distributors to Pay Attention to Safety Management Systems (SMS)

December 21, 2020 by Leave a comment

The Aviation Suppliers Association (ASA) has been promoting the adoption of risk management systems that would integrate with Safety Management Systems. One reason for this is because SMS can be a useful tool for managing safety; but another reason is because the business partners of distributors are expected to adopt SMS and distributors need to be able to work with their business partners’ SMS mechanisms.

An important driver for the ASA recommendations is the knowledge that SMS is coming. ICAO recommneded SMS almost 20 years ago, and ten years ago ICAO consolidated its SMS recommendations into one resource: Annex 19. The world’s aviation authorities have been seriously studying SMS for years, now; several have already implemented SMS for certain industry sectors and more SMS regulations are on the way.

EASA has taken the next step toward implementing a Safety Management Systems (SMS) rule for manufacturers and repair stations. Today, EASA proposed EASA SMS Opinion 04/2020. That Opinion was submitted to the European Commission for implementation.

Under that opinion. EASA proposes to modify the EU aviation manufacturing regulation, and the EU aviation maintenance regulation, to incorporate SMS. The proposed changes would also accomplish other objectives, like better alignment with other regulatory structures.

Air carriers in many countries have already adopted SMS programs. For distributors, this EASA proposal means that both the source of parts (the manufacturers) and the customers (the air carriers and repair stations) will be adopting Safety Management Systems. Past experience has shown that when the rest of aviation adopts a common approach to safety, that tends to result in application of the common approach to distribution, either through flow-down or through indirect pressure. With this in mind, it is likely that SMS will find its way into the aircraft parts distribution world and in support of this eventuality ASA has been offering SMS resources to its members for a number of years.

The next step is for the European Commission to adopt those changes. We do not yet know the precise timeline for that implementation, but the proposal has suggested implementation in the third quarter of 2021 (this timeline is not binding on the European Commission). Once the proposal is adopted by the Commission, EASA proposes that the amending regulations become applicable one year after adoption by the Commission.

The most notable SMS changes to the European aviation regulations are meant to:

  • Incorporate safety risk management, safety performance and continuous improvement elements into the EU regulations;
  • Foster an organizational safety culture in repair stations, design organizations, and production organizations; and
  • Streamline the oversight requirements for government agencies.

One of the key features of SMS for regulated parties is the identification of hazards – including future hazards – and the current mitigation of the risks posed by those predicted hazards. EASA notes that during the COVID-19 pandemic, they’ve noticed that an organization’s ability to effectively identify and manage emerging risks has proven to be an efficient tool for returning to normal operations. This is offered as a support for the value proposition associated with the introduction of SMS regulations.

EASA also posted its Comment-Response Document (CRD) for the SMS rule on its website, today. That document explains a number of the decisions that were made in the development of the SMS proposal.

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New Hazmat Rules for Shippers

March 29, 2017 by Leave a comment

Tomorrow, the Pipeline and Hazardous Materials Safety Administration (PHMSA) will publish a new revision to the United States Hazmat rules.  The new revision is intended to better harmonize United States Hazmat rules with the ICAO Technical Instructions for Shipping Dangerous Goods.  The Technical Instructions are republished by IATA as the IATA Dangerous Goods Regulations and are widely used in the aviation community.

Those who work with standards for cylinders, and those who fill, or service/requalify, cylinders, will want to review these changes carefully.

The changes also better clarify how to identify certain types of vehicles, including remote control aircraft.

Lithium battery special conditions (e.g. special conditions 181-182) are updated.  Section 173.185, which provides the packaging instructions for lithium cells and batteries, is also updated.  Be sure you follow the new labeling and marking requirements!

The new US Lithium Battery Label is authorized for use immediately in 2017

Shippers subject to U.S. jurisdiction are permitted to voluntarily comply with the new rules as of January 1, 2017 (yes, that is three months before the final rule was published).  The mandatory compliance date will be January 1, 2018.

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More Limits on Shipping Lithium Batteries?

January 29, 2016 by Leave a comment

Many aircraft parts distributors who ship lithium batteries have been frustrated with the constant change in lithium battery shipping instructions. It looks like change will remain a constant in this field.

The Associated Press is reporting that ICAO may ban lithium batteries from being flown as cargo on passenger aircraft:

A U.N. panel has recommended that cargo shipments of rechargeable lithium batteries be banned from passenger airliners because the batteries can create fires capable of destroying planes, said aviation officials familiar with the decision.

This could result in all lithium batteries being flown under a “Cargo Aircraft Only” limit.  The matter is not yet final – it must be approved by the ICAO Council.  The ICAO council is scheduled to take up the matter in February, 2016.

This appears to reflect a reversal of ICAO’s expected position, as the ICAO Panel on Dangerous Goods voted 11-7 against a ban in October 2015.

In July, Boeing advised air carriers of the dangers of shipping lithium batteries.  As a consequence, many air carriers have already implemented their own voluntary bans – they have made unilateral decisions to refuse lithium battery shipments.

Under the 2012 FAA Modernization and Reform Act, Section 828, Congress precluded the U.S. Department of Transportation from issuing or enforcing any regulation regarding the air transportation of lithium batteries, if the requirement was more stringent than the ICAO Technical Instructions.  This means that changing the ICAO standards becomes an important prerequisite to any increase in U.S. standards.

New Solutions on the Horizon?

Stanford University researchers claim that they have developed a technology that will “shut down” lithium batteries when they reach a certain temperature, preventing them from continuing to contribute to the conditions that contribute to lithium battery fires.  Even if this technology is successful in preventing fires, it could take some time to implement the technology in batteries, and the technology could have other implications in batteries used in aircraft (so it would have to be fully tested).

Watch the Requirements

Because of the frequency of changes in lithium battery instructions, it is important that all shippers ensure that they have the latest versions of the instructions from which they are shipping (whether they use the IATA Dangerous Goods Regulations, the ICAO Technical Instructions, of the U.S. DOT Regulations).  Lithium battery instructions have been changing on a more frequent basis than the three year recurrent training requirements, so more frequent training may be appropriate.

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