What to expect from the regulators

THE YEAR AHEAD

PREVIEW • WHILE THE COVID PANDEMIC IS STILL IMPACTING THE ABILITY OF REGULATORS TO COME UP WITH NEW REGULATIONS, THERE ARE SOME INDICATIONS OF ACTIVITY THIS YEAR

THIS IS AN EVEN-NUMBERED year and, for the dangerous goods transport sector, that means not so much in the way of new regulation to deal with. The biennial pattern of updates gives us some respite in 2022 – but that isn’t to say that we can take our eyes off the ball.

For a start, two of the big regulatory changes have already happened, as they both took effect promptly on 1 January. Firstly, Amendment 40-20 to the International Maritime Dangerous Goods (IMDG) Code became mandatory on that date. In practice, though, that is not such a big deal: Amendment 40-20 has been available for use since 1 January 2021 and it reflects the changes included in the 21st revised edition of the UN Model Regulations, published in 2019. As such, it is also harmonised (more or less) with the other international and regional modal regulations that came into effect over the course of last year so many in the supply chain, particularly those consigning intermodal shipments, will have already taken up the new version.

The second update to have already come into effect is the 63rd edition of the International Air Transport Association’s (IATA) Dangerous Goods Regulations (DGR). IATA works on an annual rather than biennial cycle, so the 62nd edition, which took effect on 1 January 2021, mirrors the current edition of the International Civil Aviation Organisation’s (ICAO) Technical Instructions on the transport of dangerous goods by air, once more based on the 21st revised edition of the UN Model Regulations. IATA says the annual update helps it to keep abreast of safety-critical issues and also that the revenue it receives from the sale of each year’s DGR helps fund its dangerous goods programme.

In even-numbered years, without the new ICAO Technical Instructions to follow, IATA’s DGR update generally contains fewer technical amendments, and the same is true this year, with most of those changes adopted referring to lithium batteries. A fuller report on the 62nd edition of the DGR can be found in the October issue of HCB (see page 87).

VIEW FROM THE TOP The international regulatory bodies are now halfway through their current biennium of work. They have, however, been affected like industry at large by the hygiene measures, travel restrictions and other interruptions resulting from the Covid-19 pandemic, which has slowed the pace of rulemaking. That has been compounded by space constraints at the UN’s Palais des Nations in Geneva, as well as restricted availability of live interpretation, which is needed if decisions are to be made. Taking that into account, it can be expected that the 23rd revised edition of the UN Model Regulations, due to be adopted this coming December, will feature fewer changes than usual.

Indeed, Duane Pfund, current chair of the UN Sub-committee of Experts on the Transport of Dangerous Goods, said last year that the Sub-committee feels that the Model Regulations are now sufficiently mature that they require little in the way of maintenance, other than the adoption of provisions to deal with emerging hazards, many of which relate to energy storage technology.

Mirroring once more the current experience of the industry at large, the Sub-committee is now being expected to incorporate within its work reference to the UN’s Sustainability Development Goals; in practical terms this will involve regulating the transport of

emerging, low- or zero-carbon fuels. It can easily be imagined that the Sub-committee will have to work quickly on this to keep up with the developments already being made in the industrial and transport sectors, especially as there will inevitably be a need for research to establish the type and extent of the hazards such fuels present.

Duane Pfund also said that the Subcommittee will be looking at improving the level of implementation of the UN Model Regulations and the other rulebooks that derive from it, not least in developing nations that may lack the necessary resources to make effective training available to those who need it, or to carry out the enforcement and oversight that are called for to ensure the regulations are being observed. In addition, Pfund said, the Sub-committee will be looking at issues of interpretation and wants to provide guidance on those areas of the regulations that are proving problematic.

NORTH AMERICAN ISSUES In light of Pfund’s comments, it is instructive to look at Transport Canada’s proposals to introduce a competency-based training and assessment regime in its domestic regulations (see page 32), akin to that which will be introduced to the air mode in 2023 via the ICAO Technical Instructions and IATA Dangerous Good Regulations. In its proposals, Transport Canada notes that it is the first country to take this approach but it would seem unlikely that it will be the last.

Transport Canada has also reported on its current programme of research projects, again pointing forward to potential regulation, if not this year then possibly in 2023. Not surprisingly, many of these are looking at new technologies and emerging fuels and will focus on establishing the risks such articles and substances present in transport. It is also considering how to apply digital technologies in various areas, including a geographic information system (GIS)-based risk assessment methodology and, interestingly, a ‘smart package’ for use with lithium batteries that provides an alert when there is an issue inside the package.

North America is also considering whether and how to apply the recently adopted provisions in the UN Model Regulations for the use of fibre-reinforced plastics (FRP) portable tanks; we have not yet seen any proposals from the US but composite tank truck barrels are already in use and it will not be too much of a stretch to see similar provisions for tank containers.

More broadly, the US Pipeline and Hazardous Materials Safety Administration (PHMSA) is now finding life a little easier under the Biden administration, and it is hoped that its biennial harmonisation rule, HM-215P, will appear in a timely fashion this year, allowing the US Hazardous Materials Regulations (HMR) to be aligned with international provisions from the start of 2023. Meanwhile, PHMSA is continuing with its efforts to clean up its list of special permits and approvals, incorporating them into HMR where appropriate, and taking a data-driven approach to the development of new proposals.

The other international rulemaking bodies are now largely finished with their work to transpose the changes included in the 22nd revised edition of the UN Model Regulations into the various modal rulebooks. Those changes will be formally adopted by those bodies during the course of this year so that they can enter into force promptly on 1 January 2023 – although there will be the usual six-month transition period for RID, ADR and ADN (at least within the EU) and a one-year period where Amendment 41-22 of the IMDG Code will be usable alongside Amendment 40-20.

HCB will continue to bring readers timely information on amendments to the main international regulations and, wherever possible, also to domestic legislation and regulation. We will certainly be keeping a close eye on the interesting efforts being made to harmonise road transport rules across Latin America, a massive undertaking that is long overdue.

REGULATORS AROUND THE WORLD HAVE TO BE ALERT

TO TECHNICAL DEVELOPMENTS. WHILE MANY OF THESE

RELATE TO NEW ENERGY STORAGE SYTEMS, THE

EMERGENCE OF FRP TANKS WILL ALSO NEED TO BE