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DOT Provides More COVID-19-Related Enforcement Discretion – Periodic Retesting of Certain Packaging & Materials of Trade Exception for Carriers

Date: Apr 21, 2020

On April 20, 2020, the U.S. Department of Transportation (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) issued two additional Notices of Enforcement Discretion (Notices) regarding compliance with certain aspects of the DOT hazardous materials regulations (HMR) in response to the COVID-19 public health emergency. Both Notices will remain in effect for 90 days, or while the Department of Health and Human Services determination (issued on January 31, 2020) that a public health emergency exists is in effect, whichever is sooner.

Extension of Deadline for Periodic Retesting of UN Performance Oriented Packaging

In the first Notice, PHMSA states that it is providing temporary relief from enforcement action if packaging manufacturers are unable to conduct periodic design qualification retesting due to COVID-19 operational disruptions.[1]

Ordinarily, manufacturers of UN performance-oriented packaging must complete periodic retesting every 12 to 24 months to recertify the design type for production (see 49 CFR §§ 178.601(e), 178.801(e), 178.955(e), and 178.1035(e)). PHMSA has indicated that packaging manufacturers are expected to comply with the HMR “to the maximum extent practicable.” However, it will not take enforcement action against a company that continues to manufacture such packaging beyond the mandated retest date under certain conditions:

  • No more than 90 days beyond periodic retest date;
  • Packaging manufacturer must document reasons why compliance is not possible prior to manufacturing packaging;
  • Packaging manufacturer must maintain copy of documentation, including most recent test report;
  • Only applies to designs tested and certified for PG II and PG III hazardous materials. 

Note - In addition to not covering PG I packaging, the relief does not cover remanufactured and reconditioned design types. Also, production tests required under the DOT HMR (e.g., leakproofness testing) must still be met during the manufacturing process.  

Expansion of Materials of Trade Exception Relief to Certain Carriers

In the second Notice, PHMSA states it is providing temporary relief from certain HMR requirements for persons transporting sanitizing and disinfecting materials on a motor vehicle only for the purposes of protecting the health and safety of employees directly supporting the logistical operations of the carrier.[2] The intent is to extend the relief afforded under the materials of trade (MOT) exception (49 CFR § 173.6) to certain carriers whose activities would not ordinarily meet one of the three principle qualifying criteria specified in the definition of MOT in 49 CFR § 171.8. A material of trade is not subject to any other requirements of the DOT HMR besides those prescribed in 49 CFR 173.6, which pertain to eligible materials, packaging, hazard communication, and quantity.

PHMSA indicated it will not take enforcement action against any carrier transporting sanitizing and disinfecting materials on a motor vehicle for the purpose of protecting the health and safety of employees of the carrier if:

  • The sanitizing and disinfecting materials are intended to allow employees to adhere to CDC guidelines for protecting against COVID-19;
  • The materials are being provided to protect the health and safety of employees who directly support the operations of the carrier (e.g., sorting, loading/unloading, driving delivery vehicles);
  • The materials are transported by motor vehicle;
  • The shipment complies with the MOT provisions regarding hazard class, quantity, packaging, hazard communication, and aggregate grow weight; and
  • The materials can only be utilized by the carrier’s employees (i.e., not for retail sale).

For any questions on these Notices 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

[1] https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2020-04/UN%20Packaging%20Periodic%20Testing%20Relief.pdf
[2] https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2020-04/Carrier%20MOTS%20Relief%20Notice.pdf