Environmental & Safety Law Update

Judicial Deference to Informal Agency Interpretations: Could this be the Beginning of the End for Auer?

Posted in Environmental Litigation, MSHA Litigation, OSHA Litigation

By Andrew H. Perellis and Patrick D. Joyce

US Supreme Court Capitol Hill Daytime Washington DCIn the recently released decision in Perez v. Mortgage Bankers Association (MBA), 575 U.S. ____, 135 S.Ct. 1199 (2015), Supreme Court Justices Scalia and Thomas expressed their discontent with agency deference under the “Auer doctrine.”

Another Seyfarth blog, the Wage & Hour Litigation Blog, discusses the major holding in MBA: to reject the reasoning used by the D.C. Circuit that held notice and comment rulemaking pursuant to the Administrative Procedure Act (APA) must take place when an agency issues a new interpretation at odds with a prior interpretation. The focus of this blog is on an issue that MBA did not address, but which is creating friction for the courts. Specifically, what deference, if any, should courts give to an agency interpretation that has not gone through APA notice and comment rulemaking?

Historically, courts have struggled with the extent of deference to give an agency’s interpretations of its own regulations. Under the APA § 553(b)(A), agency interpretive rules and general statements of policy are exempt from notice and comment rulemaking because interpretative rules are non-substantive, and the APA only requires substantive interpretations, having the force of law, to go through notice and comment rulemaking. However, the “Auer doctrine,” from Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905 (1997), accords substantial deference to an Agency’s interpretation of its own regulations, even if presented in an unofficial manner such as in an amicus brief.

In separate concurrences in MBA, Justices Scalia and Thomas both call into question whether any judicial deference to agency interpretations of regulations is appropriate.

In his analysis, Justice Scalia cites § 556 of the APA for the proposition that only the courts may interpret agency actions, not the agencies themselves. Justice Scalia opines that the purpose of the § 553(b)(A) exemption was to allow agencies to advise the public on the impact of a complex regulation without binding the public to that interpretation.

However, Justice Scalia believes Auer deference allows agencies to both advise and bind the public because the agency can draft the regulation to be broad and vague and then interpret it in a manner that would not have been evident to the public when the regulation was originally proposed for notice and comment. Further, under Auer, a reviewing court is beholden to an agency interpretation unless its interpretation is unreasonable, and the public is thus bound by the agency’s interpretation with the force of law. Justice Scalia calls for abandoning Auer in a future decision, when the question is properly before the Court.

Justice Scalia distinguishes Auer deference and deference to an agency’s interpretation of its governing statute, also known as “Chevron deference,” from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, if a statutory term is ambiguous, then the agency has authority to construe that term and interpret its meaning within the statutory scheme by promulgating regulations following APA notice and comment procedures. This is arguably permissible because Congress explicitly granted agencies the ability to interpret their governing statutes, and APA rulemaking procedures are followed in establishing the interpretation via regulations. Justice Scalia points out that Auer is unlike Chevron because, under the Auer doctrine, an agency does not use APA notice and comment procedures and Congress has not explicitly granted agencies the ability to interpret their regulations. This difference is enough for Justice Scalia to call for the end of Auer.

Justice Thomas takes a different route when calling Auer into question, looking instead to the separation of powers and checks and balances put in place by the U.S. Constitution. In his concurrence, Justice Thomas refers to the cases dealing with deference to agency interpretations of regulations, beginning with Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S.Ct. 1215 (1945), and calls into question the constitutionality of the entire line of cases, including Auer.

Justice Thomas believes any deference to administrative interpretations of regulations constitutes a transfer of judicial power to the executive, contrary to the language of the Constitution. Because Seminole Rock and Auer erode the judicial obligation to serve as a check on the other branches and muddle the separation between the Judicial and the Executive Branches, Justice Thomas calls for reconsideration of the entire Seminole Rock line of cases, including Auer, at the appropriate moment.

In addition, in a joint concurrence to a prior case, Decker v. Northwest Environmental Defense Center, 568 U.S. ___, 133 S.Ct. 1326 (2013), Chief Justice Roberts and Justice Alito indicated that reconsideration of Auer may be appropriate when the issue is properly before the Court. The issue of Auer deference was not before the Court in MBA or in Decker, but with at least four Justices questioning the continued validity of the doctrine, it is possible the question of judicial deference to agency interpretive rules will be reconsidered in the near future.

Such a reconsideration of Auer could have significant impact upon administrative law. Judicial review of agency action provides important protection against arbitrary or unfair agency action. However, that review is significantly restricted under Auer¸ because a court must defer to an agency interpretation simply because it is issued by the agency, with little check on the reasonableness of the interpretation. Allowing courts to consider but not defer to agency interpretations would compel agencies to be more exacting (and perhaps more forthcoming) when engaging in rulemaking. Rulemaking, while perhaps a tedious process for the agency, required notice to the public, an opportunity for the public to comment, and an opportunity for judicial review, all to ensure that the agency action is consistent with law and not arbitrary or capricious.

Update from the ABA OSHA/MSHA Conference

Posted in MSHA Compliance, OSHA Compliance

By Benjamin D. Briggs, Ilana R. Morady, and Kerry M. Mohan

To cap off the winter ABA conference, on Friday the conference discussed recent OSHA Review Commission decisions involving deference given to the Secretary’s interpretation, heat illness, and combustible dust.

Chief Judges Rooney (OSHRC) and Lesnick (MSHRC) discussed ethical and professional behavior before the Court, reminding attorneys to act appropriately and honestly in all circumstances. However, the main focus of today’s sessions was on MSHA’s Pattern of Violation program and OSHA’s proposed supplement to the recordkeeping regulations to enhance anti-retaliation protections for employees reporting injuries. Regarding MSHA’s Pattern of Violation program, the panel discussed the very real issue of being placed in the program without any citations being affirmed by the Judge, somewhat similar to OSHA’s severe violator enforcement program. Regarding the proposed supplement to the recordkeeping regulations, there was much discussion as to an employer’s ability to enforce safety rules even if an employee is injured, as well as an employer’s ability, and sometimes legal duty, to drug test employees following a workplace injury.

The day’s sessions, as with the rest of the conference, further demonstrated the sometimes deep divide that exists between employers, on one side, and OSHA and unions, on the other. Whereas OSHA and unions believe that further regulations are necessary to protect workers from potential retaliation, employers argued that the anti-retaliation provisions are sufficient as they currently exist. Nonetheless, employers will continue to face OSHA’s attempt to increase regulatory burdens.

Further, throughout the conference, employers repeatedly stressed the importance of OSHA’s consistence and predictability in issuing guidance and enforcement. OSHA, on the other hand, rejected employers’ request to provide bright line guidance, expressing its need for flexibility to address different factual situations. Consequently, we can expect seemingly inconsistent positions to continue to come from OSHA over the next year.

Update from the ABA OSHA/MSHA Conference

Posted in OSHA Compliance

By Brent I. Clark and Kerry M. Mohan

In a continued report from last week’s ABA Occupational Safety and Health Law Meeting in Naples, Florida. On Wednesday the Assistant Secretary of Labor for OSHA, Dr. David Michaels, addressed OSHA’s policy issues and enforcement.

Dr. Michaels reiterated OSHA’s goal to issue a silica standard, which he hopes will be finalized before President Obama leaves office. Dr. Michaels also confirmed OSHA’s belief that criminal enforcement and the severe violators enforcement program (SVEP) are important components of the Agency’s compliance strategy, stating that OSHA continues to work with Federal and State law enforcement in criminal prosecutions.

Dr. Michaels also addressed OSHA’s view that permissible exposure limits (PEL’s) are out-of-date and do not reflect the scientific evidence. Nevertheless, he said it was obvious that OSHA could not address this deficiency by enacting more current and appropriate standards. He made clear that despite his certainty that the PEL’s were inadequate, OSHA will not address them through notice and comment rulemaking where interested stakeholders can provide their views. Rather, OSHA would continue to press employers to adhere to lower PEL levels, mentioning use of the General Duty Clause as a potential avenue for enforcing the lower PEL’s. Consequently, employers should expect OSHA to try to enforce lower limits for specific chemicals that are different from OSHA’s published PEL’s.

Other topics discussed by OSHA included temporary employees, joint employer enforcement, new reporting requirements, process safety management, and workplace violence. Regarding the issue of temporary employees and joint employer enforcement, OSHA reiterated its focus of finding joint employer relationships in situations involving temporary staffing agencies who assign workers to a host employer. Regarding the new reporting requirements, Dr. Michaels stated that the requirements have already permitted OSHA access to employers it never knew of and were previously outside of its radar.

More to come from the conference tomorrow.…

Report From The OSHA/MSHA ABA Law Conference

Posted in OSHA Compliance

By James L. Curtis, Meagan Newman, and Ilana R. Morady

Last week we attended the ABA Occupational Safety and Health Law Meeting in Naples, Florida. This included representatives from the OSHA Review Commission, the MSHA Review Commission, OSHA and MSHA Judges, and the Solicitor’s Office.

Tom Galassi, Director, Directorate of Enforcement of OSHA, spoke at length on Wednesday about key enforcement initiatives. Galassi reaffirmed OSHA’s continued focus on using the General Duty Clause to cite employers for hazards such as heat, workplace violence, and chemical exposure below OSHA’s established PELs. He also responded to questions about OSHA’s new “non-mandatory” root cause analysis form the Agency is requesting in connection with injury and illness reporting.

Some OSHA area offices are conducting inspections if employers do not submit the new form, which essentially transforms the form into a mandatory obligation if an employer wants to avoid an inspection. Galassi did not confirm that area offices are treating the “non-mandatory” form differently, but simply stressed that the form is in fact non-mandatory.

Employers who report any injury under OSHA’s new reporting rules should be aware that OSHA is de facto treating its request for root cause analysis as mandatory, even though OSHA has not complied with notice and comment rulemaking procedures. The implications of an employer’s response are serious and should be carefully considered.

More to come from the conference tomorrow.…

EPA Significant New Use Rule for Pentane… Chemical Requires Impervious Gloves

Posted in Chemical Safety, Environmental Compliance, TSCA

By Andrew H. Perellis and Craig B. Simonsen

EPA published today a Significant New Use Rule (SNUR) for Pentane, 1,1,1,2,3,3-hexafluoro-4-(1,1,2,3,3,3-hexafluoropropoxy) (Pentane SNUR) under the Toxic Substances Control Act (TSCA), 15 U.S. Code Chapter 53.

The rule was adopted in response to the pre-manufacture notice PMN P–07–204, for the chemical identified as CAS No. 870778–34–0. Potentially affected entities under the SNUR may include chemical manufacturing and petroleum refinery industries (NAICS codes 325 and 324110), and chemical importers.

The SNUR designates that where there is a potential for dermal exposure during any manufacturing, use, or processing of the chemical the use of impervious gloves is required. Recordkeeping requirements as specified in 40 CFR 721.125 (a) through (e), and (i) are applicable to manufacturers and processors of this substance.

Note importantly that “any person who began commercial manufacture or processing of the chemical substance identified as [Pentane SNUR] for any of the significant new uses designated in the proposed SNUR after the date of publication of the proposed SNUR [78 Fed. Reg. 4806 (January 23, 2013)], must stop that activity before the effective date of the final rule.” Under the SNUR persons who ceased those activities will have to first comply with all applicable SNUR notification requirements and wait until the notice review period, including any extensions, expires, before engaging in any activities designated as significant new uses. Once a person meets the conditions of advance compliance under 40 CFR 721.45(h), the person “would be considered to have met the requirements of the final SNUR for those activities.”

The final rule, codified as 40 CFR section 721.10509, is effective April 6, 2015.

EPA Unveils the Safer Choice Label

Posted in Chemical Safety, Green Marketing, Sustainability

By Meagan Newman, Ilana R. Morady, and Craig B. Simonsen

SaferChoiceThe U. S. Environmental Protection Agency introduced this week the “Safer Choice” label, indicating that Safer Choice helps consumers, businesses, and purchasers find products that perform well and are safer for human health and the environment.

We had blogged last year that EPA’s Office of Inspector General had released a report on an evaluation of the EPA’s “Design for the Environment” (DfE) Program – its previous “green” logo/label. At A Glance, No. 14-P-0349 (September 9, 2014). The Inspector General found flaws in the DfE logo, including that it improperly implied an EPA endorsement.

EPA, it claims, spent more than a year collecting ideas and discussing new label options with stakeholders, such as product manufacturers and environmental and health advocates, with the result being its new Safer Choice label.

Administrator Gina McCarthy, in her blog on the topic, states that “[o]ur scientists employ a stringent set of human health and environmental safety standards when reviewing products for the Safer Choice program, so a product with the label is backed by EPA science. Consumers know it’s a credible stamp they can trust.”

According to the Agency, more than 2,000 products are currently qualified to carry the Safer Choice label. Safer Choice products, the Agency notes, are available for the home at retail stores, and for use in businesses, schools, hotels, offices, and sports venues.

The EPA’s website has been updated to provide “Safer Choice partners and product manufacturers” information in order to qualify and apply for the Safer Choice label. To carry the label, a product must meet the Safer Choice Standard, which includes:

To manufactures this Safer Choice label may represent an opportunity to present your products in new and valuable — Green — ways. Applicants, though, are cautioned to first investigate the likelihood for Safer Choice listing, and any potential downside or liabilities that might be raised in making the “Green” claims.

Image from www2.epa.gov/saferchoice/learn-about-safer-choice-label.

Warning! Retailers’ Environmental Enforcement Initiative in New York

Posted in Environmental Compliance, New York, RCRA

By Jeryl L. Olson and Patrick D. Joyce

Our retail clients with stores and warehouse facilities in the State of New York are warned that the State of New York Department of Environmental Conservation (NYDEC) has announced that it will begin enforcing regulations relating to hazardous waste against big boxes, supermarkets, pharmacies and other retailers which generate waste materials containing chemicals which are commonplace in household products, such as those in detergents, cosmetics, air fresheners, bug spray, and prescription and over-the-counter pharmaceuticals.

By hazardous waste regulations we mean those in New York set forth in Title 6, Chapter IV, Subpart B, Parts 370-372, which follow closely the federal Resource Conservation and Recovery Act (RCRA). In this article “RCRA” is used to denote both the New York and federal rules.

The upcoming enforcement initiative, which will include planned and unplanned inspections by NYDEC, formal Requests for Information, and other traditional state enforcement strategies, is very similar to the one waged against retailers in California over the past several years. (See related Seyfarth discussion in Retail Detail: New Rules Affecting Retail and Transportation Industry Reverse Logistics). California’s retail waste enforcement effort has led to significant penalties for retailers in California also imposing upon retailers the costs of developing and implementing technologies, systems, and processes to manage retail hazardous waste. The success (in terms of penalties) of the California enforcement initiative and the expected level of enforcement and penalties of the New York initiative is largely due to retailers’ failure to understand, and adhere to, hazardous waste regulations applicable to retail wastes.

The challenges of RCRA compliance for retailers often arise not from management of traditional maintenance wastes at stores and warehouses, but out of mismanagement of returned, damaged, out-of-date, and off-spec products and pharmaceuticals; retailers traditionally have failed to handle such products as “wastes” or “hazardous waste.” Retailers are just becoming aware that their wastes are subject to the same rules as, and must be managed in the same manner as waste at industrial facilities. Compliance for retailers is complicated by the fact that in addition to wastes generated at “big box” retailers, retail wastes are generated at thousands of small facilities, in small amounts, and must be managed by (occasionally seasonal) retail employees with little-to-no-training or experience in the management of hazardous waste. Additionally, retail wastes are generally managed in limited spaces in stores, and stores can have hundreds if not thousands of different products that can be potentially considered waste or hazardous waste. Finally, the costs of managing retail wastes (including transportation and disposal costs) are significant relative to the small volumes of waste generated in individual store locations.

Facilities that have long relied on “reverse logistics” for handling retail products that are out of date, damaged, recycled, donated or otherwise managed in the reversal logistics process will find that, as in California, such historical practice may not been seen by NYDEC as meeting RCRA requirements. While New York laws do not prohibit the use of reverse logistics (and NYDEC actually has on-line guidance about reverse logistics), NYDEC believes many retailers are not in compliance with RCRA requirements that apply to reverse logistics. Thus, retail facilities may have to make significant changes in their policies and processes for handling hazardous retail wastes that have previously been handled in the reverse logistics process.

Warned of the impending enforcement, retailers in the State of New York have an opportunity now to ensure their retail waste compliance program meets state and federal laws, and to avert or mitigate enforcement actions relating to improperly managing retail wastes. Under the NYDEP formal “Environmental Audit Incentive Policy” (CP-59), retail facilities who suspect they do not meet RCRA requirements can enter into an agreement with NYDEC to undertake audits to determine compliance, and thereafter to voluntary disclose, and correct non-compliance discovered in the audits. In return, the facilities who undertake the audits and correct deficiencies can significantly reduce penalties to TDEC, and are allowed to develop a strategy to achieve compliance in a reasonable period of time in the future. Retail facilities who do not want to take advantage of the voluntary audit/disclosure program should immediately ensure their programs for managing retail hazardous wastes meet all of the notification, labeling, segregating, containment, transport, manifesting, employee training, contingency planning and recordkeeping and reporting requirements applicable to retail wastes under RCRA. Retailers who have facilities in California, and therefore already have experience in developing RCRA compliance programs for retail wastes, should consider expeditiously implementing those programs in their retail facilities in New York.

To assist retailers in meeting retail waste requirements, NYDEC has developed several guidance documents, in the form of “plan outlines” and “checklists,” which detail the steps necessary for retailers and pharmacies to comply with RCRA.  Such guidance includes:

  • Facility compliance plans;
  • Facility employee training plans;
  • Guidance on management of universal waste; and
  • Use of reverse distribution with reverse logistics.

The NYDEC guidance is available on the NYDEC website, where NYDEC has also posted copies of briefings it conducted in 2014 for retailers warning of the enforcement initiative. The briefings are entitled “Briefing on RCRA and Pharmacies” (November 10, 2014) and “Briefing and Panel Discussions on RCRA Pharmacies and DEC’s Art Policy” (December 18, 2014).

We strongly encourage our retailers in New York to take the enforcement initiative seriously, and to promptly ensure retail facilities are handling retail hazardous waste in compliance with federal and state laws. Facilities who suspect they are not handling retail wastes in full compliance with laws should carefully consider availing themselves of the voluntary audit/disclosure process, and seek legal advice if assistance is needed in the process. In the event a facility has already received a notice of inspection, or worse, an enforcement notice, we recommend you discuss this with your Seyfarth Shaw attorney and/or another attorney promptly.

Traceability: What Does it Mean for Your Business?

Posted in Green Marketing, Sustainability

By Meagan Newman

woman hold scanner and scans barcode with laserTraceability, according to the June 2014 guide published by the U.N. Global Compact and sustainability advisory firm BSR, means: “The ability to identify and trace the history, distribution, location and application of products, parts and materials, to ensure the reliability of sustainability claims, in the areas of human rights, labor (including health and safety), the environment, and anti-corruption.”

Traceability is undoubtedly important for sustainability purposes.  As we move past the nascent stage of corporate sustainability programs—wherein much of the focus was on the low-hanging fruit of localized environmental initiatives—attention is turning outward and toward supply chains.  As such, traceability has become an important tool for assuring and verifying sustainable supply chains.  Effective traceability tools or “schemes” can ensure that minerals are not sourced from conflict regions, that products are grown in sustainable cultivations, and that human rights are protected.

According to the U.N., by focusing on traceability, businesses achieve sustainability goals and substantiate the claims they make regarding their products.  But there are other benefits as well–risk reduction, improving operational efficiencies, meeting stakeholder demand for more product information, securing supply, and meeting legal requirements.

Currently there are traceability regulations in force for US businesses under Section 1502 of Dodd-Frank and the Lacey Act, and companies are facing an increasing number of lawsuits related to sustainability claims.  The Organisation for Economic Co-operation and Development (OECD) also has guidance regarding due diligence for responsible supply chains, and in the EU there are food traceability requirements and timber regulations.

Whether a company is operating solely in the US or has an international presence, its supply chain more than likely extends beyond the borders of the US.  When considering improvements to sustainability programs or simply contemplating a statement about the environmental or social benefits of its products or services, every company should be thinking about their supply chain—and thinking twice about whether they know what they should know.

Enforcement Guidance for the Hazard Communication Standard Compliance Date

Posted in OSHA Compliance

By Brent I. Clark, Ilana R. Morady, and Craig B. Simonsen

iStock_000004667648MediumWe had previously blogged that June 1, 2015 is the deadline for compliance with the all new hazardous communication (HazCom) standard (29 CFR section 1910.1200) (HCS 2012) requirements, with exceptions for chemical distributors, and for employers to update workplace labeling and hazard communication programs. 77 Fed. Reg. 17574 (March 26, 2012).

Industry and trade associations have filed petitions and submitted comments with OSHA related to the final rule to “resolve critical compliance concerns with the implementation of the revised Hazard Communication Standard”. In response, OSHA agreed to use its enforcement discretion to provide relief from the June 1, 2015 implementation date for product formulators.

To do so, OSHA has just issued an Enforcement Guidance on the June 1, 2015 effective date. The Enforcement Guidance applies only to HCS 2012 compliance inspections of chemical manufacturers, importers, and distributors in their classification of hazardous chemicals and development of safety data sheets (SDSs) and labels for chemical mixtures.

Under the Enforcement Guidance, in classifying mixtures, manufacturers and importers are permitted to rely on “information provided on each SDS of the individual ingredients or components from the upstream supplier, except where the chemical manufacturer or importer knows, or in the exercise of reasonable diligence should know, that the SDS misstates or omits required information.” For OSHA inspections occurring after the June 1, 2015 compliance date that involve a mixture that does not have an HCS 2012-compliant label or SDS, compliance officers shall follow the instructions provided in the Enforcement Guidance.

Specifically, where a manufacturer or importer has asserted that it was unable to comply with the June 1, 2015 compliance date, the compliance officer “must determine if the manufacturer or importer has exercised reasonable diligence and good faith to comply with the terms of the standard.” Compliance officers should not cite a manufacturer or importer for failing to meet the June 1, 2015 deadline to have updated labels or updated SDSs under HCS 2012, if:

The chemical manufacturer or importer exercised reasonable diligence and good faith in attempting to obtain HCS 2012-compliant SDSs and classification information from its upstream raw material supplier(s).

Importantly, the guidance only applies where the mixture’s material safety data sheet (MSDS) and label comply with the earlier HCS 1994 standard.

New Deadlines Under the Enforcement Guidance

Now, under the Enforcement Guidance, a manufacturer or importer must create HCS 2012-compliant SDSs within six months from the date it receives all of the hazard information for the ingredients in a mixture. The manufacturer or importer will then be required to provide the HCS 2012-compliant SDS downstream “with the next shipment of the mixture” and when requested by a distributor or employer. Where a chemical manufacturer or importer has not developed an HCS 2012-compliant SDS within six months of receiving the necessary hazard information, a citation for a violation may be issued.

In addition, a manufacturer or importer must create container labels to comply with HCS 2012 within six months from the date that they developed the HCS 2012-compliant SDSs. Containers shipped after the six months period must be labeled with an HCS 2012-compliant label. Where a manufacturer or importer has not developed an HCS 2012-compliant label within six months of the date it developed its HCS 2012-compliant SDS, a citation for violation may be issued.

As to distributors, the HCS 2012 permits distributors to continue to ship chemicals with HCS 1994 labels until December 1, 2015. However, under the Enforcement Guidance, where a manufacturer or importer cannot comply with the June 1, 2015 effective date, there may be distributors that are consequently unable to comply with the December 1, 2015 compliance date. In that situation, the Enforcement Guidance advises, a compliance officer will determine, on a case-by-case basis, “whether a distributor exercised reasonable diligence and good faith to comply with the December 1, 2015 effective date.”

The Enforcement Guidance spells out in some detail what the Agency means by “reasonable diligence” and “good faith efforts,” so the regulated community should seek diligently to conform its policies, procedures, and training systems to ensure compliance.

DOT Partially Extends Compliance Date for HazCom and Labeling of Lithium Cells and Batteries

Posted in Hazardous Materials, Transportation

By Ilana R. Morady and Craig B. Simonsen

shutterstock_30524071On August 6, 2014, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a final rule modifying the requirements governing the transportation of lithium cells and batteries. 79 Fed. Reg. 46012.

The final rule revised hazard communication and packaging provisions for lithium batteries to harmonize the Hazardous Materials Regulations with applicable provisions of the United Nations Model Regulations, the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air and the International Maritime Dangerous Goods Code. The August 6, 2014 final rule had set a mandatory compliance date of February 6, 2015 for shippers to incorporate the new requirements into standard operating procedures and to complete training of affected personnel.

However, several retail and industry-related associations submitted a joint request for an extension of six months to the current mandatory compliance date. The request contended that the six month period adopted in the final rule did not provide sufficient time to comply with the new requirements and has proven extremely challenging for the retail industry to implement — in particular for surface transportation. The requestors noted that “generally, the new regulations require that domestic ground shipments of products with lithium batteries adhere to shipping standards previously only required for international air and sea transportation.” It was also noted that tens of thousands of consumer products may be impacted by the rule.

In this PHMSA notice, the Agency has partially extended the compliance date to August 7, 2015. 80 Fed. Reg. 9218 (February 20, 2015). In an important compliance distinction, PHMSA is maintaining the February 6, 2015 effective date for offering, acceptance, and transportation by aircraft. This extension, therefore, does not apply to transportation by aircraft. Otherwise, in response to commenters’ requests PHMSA is extending the mandatory compliance date for the lithium cells and batteries final rule published on August 6, 2014, until August 7, 2015 for all modes other than transportation by aircraft, to allow additional time to implement the requirements of the rule.