The Bullet:

Due to the COVID-19 public health emergency, USDOT/PHMSA issued a notice of enforcement discretion for the continued manufacturing of United Nations (UN) Performance Oriented Packaging used in the transportation of hazardous materials (HazMat) which have exceeded their periodic retesting dates.  USDOT/PHMSA is providing temporary relief from enforcement action if packaging manufacturers are unable to conduct periodic design qualification retesting within 90-days of a retest date due to COVID-19 operational disruptions.

See the Notice of Enforcement Discretion for the Continued Manufacturing of Performance Oriented Packaging Designs Exceeding Their Periodic Retesting Date for more details.

Who:

• William S. Schoonover / Associate Administrator for Hazardous Materials Safety
• The agency: the Pipeline and Hazardous Materials Safety Administration within the U.S. Department of Transportation (USDOT/PHMSA).
• The affected:  manufacturers of United Nations Performance Oriented Packaging.

What does the HMR require?

• The Hazardous Materials Regulations (HMR, 49 CFR Parts 171-180) prescribe that UN Performance Oriented Packaging design types be subjected to periodic retesting every twelve (12) to twenty-four (24) months, depending on the design type (see §178.601(e), §178.801(e), §178.955(e), and §178.1035(e)).
• Periodic design testing is required to recertify the design type for continued production of a UN Performance Oriented Packaging.

Daniels Training Services, Inc. 815.821.1550 Info@DanielsTraining.com https://www.danielstraining.com/

What is the relief?

• PHMSA gives notice that it will not take enforcement action against any company that continues to manufacture a UN Performance Oriented Packaging conforming to a tested design that is not more than 90 days beyond its periodic retest date.
• The relief applies to manufacturers of:
  • Non-bulk packagings.
  • Intermediate bulk containers (IBCs).
  • Large packagings.
  • Flexible bulk containers.
• This relief only applies to designs tested and certified for Packing Group (PG) II (Y-marked) or PG III (Z-marked) hazardous materials.  PG I (X-marked) designs are not eligible for this enforcement discretion.

• All production tests required under the HMR must still be met during the manufacturing process.  As such, relief from production testing is not being granted.  For example, the requirements in §178.604 and §178.813 for leakproofness testing of non-bulk packages and IBCs continue to apply.
• The following packaging types are eligible for relief from the periodic retest requirement:
  • UN Specification non-bulk packagings manufactured in accordance with part 178, subpart L and M to PG II and III performance standards.
  • UN Specification IBCs manufactured in accordance with part 178, subpart N and O to PG II and III performance standards.
  • UN Specification large packagings manufactured in accordance with part 178, subpart P and Q to PG II and III performance standards.
  • UN Specification flexible bulk containers manufactured in accordance with part 178, subpart R and S.
• To qualify for this enforcement discretion, a manufacturer must document the reasons why compliance is not possible prior to manufacturing packagings which are not more than 90 days beyond the required periodic retesting date.
• The packaging manufacturer must maintain a copy of the document stating why compliance is not possible and the most recent test report (design qualification or periodic retest, as appropriate) until the packaging is again successfully retested.
• USDOT/PHMSA expects manufacturers to complete missing tests in a timely manner as soon as testing capability is regained.
• No other relief from HMR requirements (e.g., production leakproofness testing) is provided in this notice.

Where:

This relief applies to manufacturers of UN Performance Oriented Packaging regardless of whether they are domestic (within U.S.) or foreign (manufactured outside of U.S.).

Note:  UN standard packaging manufactured outside the U.S. is an authorized packaging subject to the conditions and limitations of §173.24(d)(2).

When:

• Date of issuance:  April 20, 2020.
• This Notice of Enforcement Discretion is effective while the Department of Health and Human Services (HHS) January 31, 2020, determination that a public health emergency pursuant to Section 319 of the Public Health Service Act related to COVID-191 is in effect (see: https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx), or 90 days from the date of issuance of this Notice (July 19, 2020), whichever is sooner.
• UPDATE: July 09, 2020 USDOT/PHMSA announced an extension of this enforcement discretion until October 31, 2020. Read: Notice of Extension of Enforcement Discretion Regarding Continued Manufacturing of Performance Oriented Packaging (POP) Designs that have Exceeded Their Periodic Retesting Date

Why:

• Due to the Coronavirus Disease 2019 (COVID-19) public health emergency, the USDOT/PHMSA) has received several inquiries from members of the regulated community requesting an extension of periodic retest date requirements for packaging used in the transportation of hazardous materials.
• Industry stakeholders state that, absent an extension of these periods, continued manufacturing of packagings that conform to tested designs would be inhibited, and a shortage of available UN Specification packagings may develop.
• Non-bulk packaging design types such as drums, jerricans, pails, IBCs, large packagings, and flexible bulk containers are subject to frequent quality control testing in production to verify conformance with design specifications.  Additionally, all liquid-rated non-bulk packagings and IBCs as well as IBCs intended to be discharged under pressure are subjected to production leakproofness testing in accordance with HMR requirements prior to filling.

Note: Centers for Disease Control and Prevention (CDC) recommends consumers use an alcohol-based hand sanitizer that contains at least 60% ethanol or 70% isopropanol.

How:

• USDOT/PHMSA’s mission is to protect people and the environment by advancing the safe transportation of energy and other hazardous materials that are essential to our daily lives.  To do this, the agency establishes national policy, sets and enforces standards, educates, and conducts research to prevent incidents.
• This document is a temporary notice of enforcement discretion.  Regulated entities may rely on this notice as a safeguard from departmental enforcement as described herein.  To the extent this notice includes guidance on how regulated entities may comply with existing regulations, it does not have the force and effect of law and is not meant to bind the regulated entities in any way.

Conclusion:

As the COVID-19 public health emergency continues to affect the world’s economy through its manufacturing and transportation industries (and many others), USDOT/PHMSA and other U.S. regulatory agencies will continue to offer reliefs of this kind.  Refer to my blog for other instances of regulatory relief offered by USDOT/PHMSA and USEPA.

Notice as well that this relief came after petitioning by “industry stakeholders”; ‘the squeaky wheel gets the grease!”  If you find your industry hindered by compliance with the HMR during the COVID-19 public health emergency, be sure to ask USDOT/PHMSA for relief.