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DOT Issues Notice of Enforcement Discretion Regarding the Transportation of Hand Sanitizers to Address COVID-19 [Updated April 10, 2020 – see below*]

Date: Apr 03, 2020

On April 2, 2020, the U.S. Department of Transportation (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a Notice of Enforcement Discretion (Notice) that provides temporary relief from certain aspects of the DOT Hazardous Materials Regulations (HMR) that normally apply to the transportation of ethyl alcohol or isopropyl alcohol-based hand sanitizers. [1]

Due to the Coronavirus Disease 2019 (COVID-19) public health emergency, demand for hand sanitizer has reached unprecedented levels. Many of these sanitizers are classified as Class 3 flammable liquids due to the alcohol content, which would trigger certain marking, labeling, packaging, documentation, and other compliance obligations for shippers (and carriers) under the DOT HMR. Although the DOT HMR already provide some regulatory relief for certain ethyl alcohol products in 49 CFR 173.150(g), this does not cover isopropyl alcohol products and it does not cover ethyl alcohol products in larger containers. To facilitate the availability of these products, PHMSA is providing temporary relief from certain HMR requirements. 

The Notice indicates that the relief applies to companies producing hand sanitizer under a recently issued Food and Drug Administration (FDA) Guidance document and to those who subsequently transport the hand sanitizer. [2]

Importantly, it applies only to highway shipments (by private, common, or contract carriers by motor vehicle) and not shipments by air, vessel, or rail.  

If parties follow the procedures for preparing hand sanitizer for shipment set forth in the Notice (as compared to all of the requirements specified in the HMR), PHMSA will not take enforcement action for violations of the HMR. The Notice provides separate procedures for shipping small quantities (< 1 gallon/container or 8 gallons/package) and for larger quantities (> 8 gallons to 119 gallons/package) of hand sanitizer.   

For any questions on this Notice of Enforcement Discretion, which expires on July 2 or when the public health emergency is declared over (whichever is sooner), or the shipment of hazardous materials in general, please contact us.

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

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

 

*On April 10, 2020, PHMSA issued an updated Policy in which it indicates:

  • Labels that conform to FDA guidance may be used to satisfy marking requirement provided the FDA labels are visible in transportation.
  • DOT Hazmat Registration requirements are waived irrespective of the quantity of hand sanitizer transported.

See https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2020-04/PHMSA%20Revised%20Hand%20Sanitizer%20Notice.pdf

 

[1] https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2020-04/PHMSA%20Hand%20Sanitizer%20Relief%20Notice.pdf

[2] https://www.fda.gov/regulatory-information/search-fda-guidance-documents/guidance-industry-temporary-policy-preparation-certain-alcohol-based-hand-sanitizer-products-during