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Geoffrey Arend Air CArgo News Thought Leader
   Vol. 13 No. 57     Thursday July 3, 2014

DG Rules Watch Your Language

DG Rules Watch Your Language

In June 2014, Germany is a prosperous, rich, and otherwise quite overregulated state, and yet it does not have any law governing the transport of Dangerous Goods by Air.


Unbelievable? Read On!

     As a whole, the German Gefahrgutbeförderungsgesetz (Dangerous Goods Transportation Act) regulates (and properly so) the transport of Dangerous Goods.
     However, the Gefahrgutbeförderungsgesetz does not make any detailed provision, but simply refers to the “Gefahrgutverordnungen” (Dangerous Goods Directives), which includes one directive for each mode of transport.
     These directives for the transport modes of road (ADR), rail (RID), and inland waterway (ADN) were combined in 2009 into the GGVSEB, Gefahrgutverordnung Strasse, Eisenbahn und Binnenschiff (Dangerous Goods Directive for road, rail, and inland waterways).


Everything But Air

     There is also a maritime Dangerous Goods Directive—but no directive for air transport.
     The European standard manuals (ADR, RID, and ADN) have been translated into German and are incorporated by reference for road, rail, and inland waterway, the IMO’s IMDG code, also in an official German version, is incorporated by reference for the maritime mode.
     Germany is a signatory state and member of ICAO.
     The ICAO “Technical Instructions for the Safe Transport of Dangerous Goods by Air“ should be applicable, since this is the agreed worldwide basis for the air transport of Dangerous Goods.
     But that is not quite so in the case of Germany.


A Matter Of Language

     The German constitution requires—understandably so—that whatever shall be deemed applicable law must invariably be made available in the official German language.
     However, there is no German Edition or translation of the ICAO TI.
     In the late 1980s, the German Civil Aviation Authority—the Luftfahrtbundesamt—published the document “News for Airmen“ (Nachrichten für Luftfahrer), which outlined that “the transport of Dangerous Goods by Air is subject to the requirements of the ICAO TI in its most recent edition and as also laid down in the German edition of the IATA Dangerous Goods Regulations (‘IATA Gefahrgutvorschriften’ in German)“.


IATA DGR Faulty Towers

     By this bylaw, published only in a regulatory document that by no means can be considered applicable German law, the LBA gave the IATA DGR a semi-regulatory standing since there was simply nothing else available in German language.
     This effort turned out to be less than brilliant, because it placed shippers and handlers under the obligation to purchase manuals from IATA which, compared to other modes of transport, were outrageously expensive in terms of cost.
     Also, in its preface, the IATA DGR expressly declares only the English edition as “binding.”
     Unfortunately, the IATA translation is faulty and often does not meet agreed upon language standards.
     IATA also adds requirements in excess of the ICAO TI in order to promote best business practices and operational safety, which, as it should be clearly stated here, is a good thing, and indeed increases safety. However, this mere half sentence: “as also laid down in the IATA DGR,“ published by the LBA, failed to address the different legal standing of basic ICAO requirements and additional IATA requirements. As a matter of fact, non-compliance with ICAO provisions could be a crime or felony and lead to prosecution, while non-compliance with the heightened IATA requirements is, in legal terms, a mere breach of the contract of carriage that will get a shipment excluded from air transport but does not constitute a breach of law.


Compliance Not Required

     There is, as unbelievable as this may sound to the DG and compliance professional, no agreed list of penalties for violating air transport regulations, and no enforcement outlined for non-compliance with the classification, documentation, marking, and labeling provisions as set forth by the ICAO TI. Thus, at best, faulty air shippers were penalized for violating provisions of the ADR for the road transport segment of their cargo to the airport.


Trainer Qualification

     Back in 1998, the LBA decreed that trainers for the highest staff category for DG by Air (at that time SC3, now SC6; covering Dangerous Goods acceptance personnel) would have to demonstrate proficiency with the regulations.
     However, trainer licenses were awarded without expiry date at that time, and the pass mark was 70 percent for the proficiency test instead of the internationally agreed 80 percent.
     In 2002 this changed, and a pass mark of 80 percent was required, following a 2005 requirement for recertification every five years.
     All that, however, was without any legal basis.
     The LBA’s position was that there was no possibility to legally challenge these trainer tests and accreditation requirements, and would-be trainers were only informed whether or not they had passed without revealing actual grades.
     The situation literally exploded in the LBA’s face when, for example, a Doctor of Chemistry with DGSA qualification for all five modes of transport—including air and 30+ years of professional DG experience—had to undergo the requalification… and failed.
     In that case, it turned out a number of questions were worded so poorly that it was impossible to give correct answers, and since the test required extensive knowledge of air transport load control provisions (which are never a part of DG training) the LBA faltered and allowed the good Doctor to retake the test.
     This turned out to increase the legal pressure on the LBA, since no result for this retaken test could be communicated until a later date more than four months after the test was retaken (while usually, results are distributed within a mere week). Needless to say, the Doctor of Chemistry—who very rightfully felt his professional credentials at stake—went on in his legal proceedings to have this questionable non-ruling and inactivity of a German federal authority overturned in a court of law.


What’s Next?

     So what’s coming next?
     That remains to be seen.
     There is a multitude of regulation stemming directly from EC regulations; most noteworthy are EC directives 965/2012 and EC 895/2008, which Germany failed to implement.
     The EU-OPS (covering the transport of goods and passengers to, from, and through the EC by means of air transport) are implemented and applicable, but as for the transport of dangerous goods the EU-OPS simply refer to the provisions made in the ICAO TI, same as the German Air Transport Act (Luftverkehrsgesetz), so it’s back to square one.
     Certainly whoever has been penalized in one way or another for unlawful on non-compliant transport of goods by air in Germany could reopen the case and require a refund, since there was no legal basis.
     Also, back in 2013 the LBA communicated to selected carriers and ground handling providers that they deemed the indication of the number of pieces containing so-called “Excepted Lithium – Batteries in accordance with part II of the applicable packing instruction“ mandatory, although there was no such requirement in either the ICAO TI or the IATA DGR, and no state variation has been listed in either of the two publications.
     In 2013 alone, Dutch shippers had several Lithium battery shipments stuck in FRA without legal grounds.
     Another unpublished German requirement is the inadmissibility of “Zippo” lighters carried by passengers, although no other state worldwide has such a requirement.
     It actually stems from a translation or, more precise, interpretation error made years ago by the LBA; it isn’t published anywhere else save for the LBA’s website.
     So if your precious armed forces service memento was taken away from you when you left Germany some time ago, feel free to file for compensation. There was no legal basis for your loss.
     In the meantime, the LBA says that it is in ongoing talks with the German Federal Ministry for Transport, Construction, and Urban Development “to create a valid source for the transport of Dangerous Goods by Air and an associated penalty code.“
     This, in 2014—they must be joking!


Explosive Issues

     And here’s a tidbit of information that might interest folks over at FAA and PHMSA:
     Articles and substances in Class 1—explosives—must be classified by a competent national authority.
     In Germany that’s the BAM; the Federal Institute for Materials Research.
     Credit where credit is due, the BAM’s technical experts enjoy worldwide respect and deliver superior work in all areas for which they’re responsible.However, the air transport of explosive items classified by the BAM from and through Germany simply is not regulated by German law, creating a loophole that might void a number of certifications and permits.
     At the next appearance of Ms. Merkel (the German chancellor) or Mr. Dobrind (the German minister for transport) complaining about structural shortcomings in other states, they may be well advised to look at their own turf first.
Jens


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