Law Center Harmonizes Transport Regulations in North America
Jan 1, 1998 12:00 PM
HARMONIZATION of surface transportation regulations among the United States, Mexico, and Canada is key to the timely implementation of the North American Free Trade Agreement (NAFTA), said Gary T Doyle, attorney and project legal director for the National Law Center for Inter-American Free Trade (NLCIFT).
"Harmonization is making things work together," Doyle said. "Uniform means they are exactly the same. Creating uniformity is impossible because there are too many different policy considerations. We are trying to make the rules in various countries work well enough together to facilitate commerce."
Doyle spoke at the semiannual conference of the Hazardous Materials Advisory Council (HMAC) held November 5-7 in Santa Fe, New Mexico. He has studied the legal and practical barriers to cross-border transportation for the past three years and has authored studies for the Federal Highway Administration. Under his direction, the North American Committee on Surface Transportation and Practice has drafted documents on general cargo issues for transportation among the three countries.
"Two years ago, US and Mexican carriers were supposed to have access to border states under NAFTA," Doyle said. "Currently, companies have free access only within a 20-kilometer (121é2-mile) distance from the border.
"The only alternatives are to pay duties on your equipment, align with a Mexican carrier, or purchase 49% of an international carrier operating in Mexico that can transport the product for you.
"Ironically, Canada has no restrictions on Mexican carriers operating in Canada. But trucking companies can't get through the US."
Safety problems, specifically hours of service requirements, in Mexico have been cited by US companies as one reason why provisions in NAFTA were not implemented on December 18, 1995, Doyle said. Another question is whether Mexican carriers that transport hazardous materials should be required to carry a higher level of liability insurance before operating in the US.
"Mexican regulations require drivers who transport hazardous materials to log their hours of service," he said. "Because of the size of the country, you can drive to just about any destination within Mexico and remain within US hours of service requirements.
"Insurance requirements for hazmat transportation in Mexico are much lower than in the US. What if a company successfully defends a claim by arguing that the liability limits for insurance purposes are not valid?"
Transportation Consultative Group One harmonization effort is headed by the Land Transportation Standards Subcommittee (LTSS), a NAFTA-sanctioned organization, which has published the North American Emergency Response Guidebook in Spanish, French, and English, Doyle said. One objective is to help distribute the guidebook to every truck in North America. Another effort is directed by the Transportation Consultative Group (TCG), which is not sanctioned by NAFTA.
"TCG is an agreement between the three ministries of transportation to work toward harmonization in areas outside of the jurisdiction of LTSS," he said. "TCG has given the national law center the responsibility to develop a uniform liability regime and uniform bill of lading."
For the most part, the uniform bill of lading is complete, Doyle said, except for a problem regarding hazardous materials. In the US, the bill of lading used with hazardous materials is labeled "HM." Canada uses a similar bill of lading, except with a heading of "DG" for dangerous goods.
"We submitted a proposal to the Research and Special Programs Administration (RSPA) for a bill of lading with the heading of HM/DG," he said. "Even though DG is recognized internationally, RSPA rejected our proposal."
NLCIFT soon will publish Recommended Standard Practices for the Transportation of Merchandise Between US, Mexico, and Canada, Doyle said. The publication is intended as a guideline for the documentation of products by shippers and carriers.
"Standard Practices offers information about labeling, packaging, and documentation requirements for carriers that operate across the border," he said. "For example, what type of documents do you need to show to officials during a road inspection in Mexico?"
NLCIFT and Texas A&M International University in Laredo, Texas, are working on a proposal to provide cross references of hazardous materials classification systems, Doyle said. The proposal will be submitted to government agencies involved in ground transportation such as the US Customs Service, Federal Highway Administration, and RSPA.
"Chemicals imported into Mexico for twin-plant (maquiladora) operations are returning to the US as waste because Mexico will not dispose of the chemicals," he said. "We are suggesting modifying the Harmonized Tariff Schedule so that the movement of hazardous waste can be monitored more easily by US Customs."
Founded in 1992, the NLCIFT is a non-profit research and educational institution that seeks to identify and eliminate mechanical and structural legal obstacles to the free movement of goods and services among countries of the Western Hemisphere.
The NLCIFT provides research assistance as a service to members, subscribers, and the general public. Examples of materials include statutes, regulations, technical standards, government procurement notices, selected constitutional and commercial case law, and selected English translations of Mexican laws. The law center's web site is http://www.natlaw.com.
Clear Language When it comes to the publication of government regulations, less is always better, according to Robert Thomason, director of compliance and response for the transport of dangerous goods, Transport Canada. Thomason is responsible for the development and implementation of policies and strategies for inspection, inspector training, enforcement, and remedial measures. He discussed the Canadian perspective on the need for "Clear Language" regulations.
"Regulations must be understood clearly to be fair, obeyed, and enforced," Thomason said. "There's a mistaken belief by some people that all laws must be written in a uniform manner using sentences that contain 114 words.
"We are trying to change regulations into clear language that can be understood easily. You shouldn't have to go on a professional treasure hunt to interpret a regulation because one sentence contains 16 cross references.
"Clear language is more than clear words. The proper use of space is just as important as the words on a page. Currently, English and French regulations in Canada are printed on the same page. We want to publish separate versions for better readability."
Transport Canada is working to abolish regulations that do not meet certain guiding principles: they must either help prevent an accident or they must provide guidelines for responding to an accident.
"The mandatory inclusion of the consignee's name and address on dangerous goods shipping papers does not help prevent an accident or provide any help for responding to an accident," Thomason said. "So we eliminated this information from shipping papers.
"Clear language certainly will impose additional work for people who don't want to change, such as bureaucrats, regulators, and lawyers. Inspectors may be our biggest hurdle to overcome in Canada. They've spent more than a decade becoming experts with the current regulations.
"We have completed several drafts of the clear language proposal. It's on our web site at www.tc.gc.ca."
Hazmat Classification E Vaughn Arthur, director of education and training for HMAC, provided some classroom examples of information covered during the HMT-605 course, Classification of Hazardous Materials For Transportation. The training course is taught by HMAC instructors over 21é2 days.
Material covered includes hazard classes/divisions; packaging groups; hazardous substances; materials poisonous by inhalation; marine pollutants; and precedence of hazards for multiple-class materials. Students learn how to obtain information for making an accurate classification, select proper shipping names, and interact with a laboratory for the testing of products.
"Proper classification is the starting point for any shipment," Arthur said. "Classification means you have to determine whether the product is a hazardous material."
Classification of some hazardous materials can be determined by finding the name in the hazardous materials table (HMT). Entries in the HMT generally can be grouped into the following types: specific chemical or technical names such as acetone; generic chemical family entries such as alcohols; generic usage entries such as paint or cleaning liquid; and generic hazard class entries such as flammable liquids.
The applicability of the list-based approach is extremely limited because only specific-type entries can be used in determining the classification. The criteria-based approach requires information about the hazardous characteristics of a material. Those characteristics must be compared to the relevant hazard class definitions.
"Using the criteria-based approach sometimes requires chemical analysis, which can be costly because of delayed shipments," Arthur said. "The HMAC course provides information on how to select a laboratory and the analysis of testing results. But it also includes alternative methods of gathering information that can minimize chemical testing.
"For example, instead of calculating the flash point of a product, it may be possible to determine its classification by using information that is already available. The course focuses on how to ask the right questions."
HMAC is an authorized Continuing Education Unit Sponsor member of the International Association for Continuing Education and Training. The web site is www.hmac.org. HMAC will hold its annual conference and exposition May 13-15 in Washington DC, and its next semiannual conference November 4-6 in San Francisco CA.
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