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DOT to Exercise Enforcement Discretion Regarding Noncompliance with Certain Hazmat Training Requirements

Date: Mar 27, 2020

As the Coronavirus Disease 2019 (COVID-19) outbreak continues to cause unprecedented disruptions to normal business practices, the U.S. Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) has indicated that for the next 90 days it will not be taking enforcement action against any offeror or carrier of hazardous materials (hazmat) for failure to comply with the recurrent DOT hazmat training requirements of 49 CFR § 172.704(c)(2). [1] The enforcement discretion is intended to minimize disruptions in the supply-chain and will be exercised by the Federal Aviation Administration (FAA), the Federal Motor Carrier Safety Administration (FMCSA), the Federal Railroad Administration (FRA), PHMSA, and the United States Coast Guard (USCG).

Under the DOT hazardous materials regulations (HMR), hazmat employers, i.e., persons/companies that use one or more employees in connection with transporting hazmats in commerce, causing hazmats to be transported or shipped in commerce, or representing, marking, selling, certifying, offering, manufacturing, etc., packaging as qualified for use in transporting hazmats, must provide DOT hazmat training to their hazmat employees (see 49 CFR § 171.8 for full definitions of hazmat employer and hazmat employee). The training obligation also extends to certain self-employed individuals and government workers.

The details of the DOT hazmat training requirements are set forth in 49 CFR 172.700-704. Each hazmat employee must receive four (or, in some instances, five) types of training: (1) general awareness; (2) function-specific; (3) safety; (4) security awareness; and (5) in-depth security training (if employer is subject to DOT security plan obligation). This training must be completed prior to the person performing any job functions that qualify the individual as a hazmat employee (unless performed under the supervision of someone who has completed training and the training is completed within 90 days). In addition, each hazmat employee must be re-trained in all four (or five) types of hazmat training every three years. This so-called recurrent training is the subject of DOT’s enforcement discretion.

While DOT has indicated that for the next 90 days (until June 23, 2020) it will not take enforcement action against any hazmat employer who is unable to provide recurrent training to their hazmat employees, this enforcement discretion does not cover noncompliance with the initial DOT hazmat training obligation. This means that employers are not being provided leeway to assign employees to perform hazmat employee duties who have not previously satisfied the initial DOT hazmat training requirements. 

For any questions on the shipment of hazardous materials or DOT hazmat training requirements, please contact us.

Trent Doyle (+1 202.434.4161), doyle@khlaw.com

Taylor Johnson (+1 202.434.4255), johnsont@khlaw.com

 

[1] https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2020-03/PHMSA%20Enforcement%20Policy%20Notice%20-%20TRAINING%20update.pdf (initially issued March 23, updated on March 25, 2020)