Question (03.17.21):

Hi Daniel,

We have a customer who wants to ship empty containers to a container cleaning center. The totes and drums are empty and have been rinsed. Those containers had hazmat materials, can they cover up the labels and ship them ?

Regards,

Answer (03.17.21):

Thank you for contacting me. Please see below.

There are two options for the transport of these packagings in compliance with the Hazardous Materials Regulations (HMR) of USDOT/PHMSA:

Option 1: No Hazard

• The transportation of a packaging is not subject to the HMR under the following conditions:
  • It is unused.
  • It has been cleaned of residue and purged of vapor to remove any potential hazard.
  • It has been refilled with non-HazMat so no hazard remains.
• Under any of the above conditions the packaging is excepted from the HMR and may be transported as non-HazMat if the following is done:
  • All hazard communication (labels, marks, etc.) indicating the packaging contains a hazardous material are removed, obliterated, or securely covered.

Or…

• • The packaging is not visible during its transportation and it is loaded by the shipper and unloaded by the receiver or shipper.

Option 2: The Empty Packaging Exception

• If any HazMat residue remains the packagings may still be transported under the empty packaging exception. Compliance with the empty packaging exception requires the following:
  • It is a non-bulk packaging with a maximum capacity of no more than 450 L (119 gal).
  • It meets the USEPA criteria for RCRA empty with no more than 2.5 cm (1 in) of residue.
  • It is a HazMat found in Placard Table 2 at 49 CFR 172.504(e).
  • Transportation is by a private or contract motor carrier. Transportation by a common carrier is not eligible for the full empty packaging exception.
• If the consignment is eligible for the full empty packaging exception, compliance requires the following:
  • It is not required to display placards on the vehicle.
  • It is not required for the shipper to prepare a shipping paper.
  • Package marks and labels are required to be displayed on the packaging the same as if it is full.
  • All other requirements of the HMR remain, e.g., HazMat Employee training.
• If the consignment is eligible only for the partial empty packaging exception, compliance requires the following:
  • It is not required to display placards on the vehicle.
  • The shipper must prepare and sign  a shipping paper that describes the consignment as a hazardous material.
  • Package marks and labels are required to be displayed on the packaging the same as if it is full.
  • All other requirements of the HMR remain, e.g., HazMat Employee training.

You indicate the packagings are empty and have been rinsed. The question to be answered is this:

Have they been emptied and rinsed to remove any potential hazard?

• If yes, then the packagings may be offered for transportation as described in Option 1.
• If no, then either the full or partial empty packaging exception described in Option 2 is available.

I hope this helps. Please contact me with any other questions.

That did it!:

Hi Daniel,

Thanks for the information and the links, this really helps.

Question (12.08.20):

Hi Daniel,

I enjoy reading your articles, find them concise and easy to interpret. I was reading your piece on the government employee exemption, and wanted to get your opinion on something. Since the word “commerce” seems to be an operative word here, would you consider the transportation of hazmat by a non-government company on public roads from one university building to another “in commerce”? The materials are not being sold, but rather just moved to a new building so the old one can be renovated. I assume that since we would be giving money to the vendor to transport the hazmat, even if it is just ½ mile up the road, that this would be considered in commerce, but just wanted to check with someone else. I know we could transport them with our university vehicles without complying, but we just don’t have the manpower right now. I appreciate your input on this, thanks again,

Kind Regards,

My answer:

Thank you for contacting me. Please see below.

The transport of HazMat by a private company for a government agency is considered to be “in commerce” and therefore subject to all USDOT regulations.

It is not eligible for the Government Employee Exemption.

You are correct that a you may transport some HazMat yourself as a private motor carrier for a non-transportation related business under the Materials of Trade Exception.

That seems to answer your question.

Please let me know if you have any other questions.

After a pause of almost three months, he provided an update on March 02, 2021:

And just an update as far as this goes. I spoke with USDOT/PHMSA about this some, and what I understand is acceptable, which we plan on doing, is having our local university police temporarily block off access to the public road that the vendor would use to transport chemicals from one building to the next to get around DOT regs. It is about ¼ a mile, so not far at all. The difference in price for packing to DOT vs. just using best management practices is huge. We decided to contract this out rather than use our university vehicles to transport, which we could obviously do without DOT if we wanted. All happening in September or October, and can let you know how it all goes down. Take care,

And my confirmation:

Correct, per 49 CFR 171.1(d)(4) movement by motor vehicle is not subject to the HazMat Regulations if access to the public road is restricted by signals, lights, gates, or similar controls.

Question (11.23.21):

Hi Daniel,
I saw your video on YouTube and had a couple questions I was hoping you could answer for me. Regarding Limited Quantities, does the UN number get written on the Limited Quantities sticker?

Answer (11.23.21):

Thank you for contacting me. Please see below.

From a previous Onsite Training customer on January 30, 2018:

Good morning Daniel,

Hate to bother you but if you can find just a moment, our folks are making some changes to our labeling program and wanted me to confirm some information regarding the combustible liquid exception. Specifically –

• Small quantities – correct that they are not subject to any hazmat regs? Is this true even if they are not in combo packaging?
• Drum quantities – diamond required on drum (‘Combustible – 3’)?
• If small quantity containers and drums are marked with our standard product label, which includes DOT shipping information and HMIS marking, do they need to also display the diamond?

Again, sorry to bother you but I wanted to be positive! Thanks for any guidance!

My reply that same day:

Thank you for contacting me. Please see below.

• If your hazmat meets all of the requirements for a combustible liquid you may then take advantage of the combustible liquid exception.
• A non-bulk packaging (capacity of no more than 119 gallons) of a combustible liquid – meeting all other requirements of the exception – is not subject to USDOT regulations. I assume this is what you mean by “small quantities”. The type of packaging, i.e., combination, single, composite… does not matter as long as it is non-bulk packaging and all other requirements of the exception are met.
• A drum quantity (55 gallons) is still a non-bulk packaging and is not subject to USDOT regulations if all of the conditions of the combustible liquid exception are met. The HazMat label “diamond…” is not required if the combustible liquid exception is used.
• If you are taking advantage of the combustible liquid exception the non-bulk packaging should not display any of the USDOT hazard marks or labels. HMIS or GHS hazard communication required by OSHA may still remain. The hazard communication requirements of OSHA do not impact USDOT regulations.

I hope this helps. Please contact me with any other questions.

Another satisfied customer:

Thanks again Daniel, I really appreciate all the information.

And one more thing…

• Under the combustible liquid exception a bulk packaging does not enjoy full relief from regulation as does the non-bulk packaging, but on advantage is this: A DOT specification packaging is not required for a bulk packaging of a combustible liquid.

• It is an option to display the white-bottomed placard for transport of combustible liquid by highway. It is required for rail transport. Read: The White Bottom Placard for Combustible Liquids

A question from a customer and reader of my blogs (06.22.20):

Deal Mr. Daniel,

How are you? There was long time no contact, I believe you are doing well.

Recently i am reading your article: “Determining Authorized Packaging for the Transportation of a Hazardous Material”

If a item to be shipped within US domestically by FX Ground, which is UN2925, class 4.1 (8), packing group II, and it can fully satisfy all the requirements of Small Quantity in §173.4, 49 CFR, but it is shown “None” in the field of column 8A, §172.101 Hazardous Materials Table, 49CFR.

Can this item be offered as small quantity packaging by FX Ground? Based on §172.101(i)(1) Column 8A , “None” in Column 8A means no packaging exceptions are authorized, except as may be provided by special provisions in Column 7. The referenced exceptions are in addition to those specified in subpart A of part 173 (which includes Small Quantity in §173.4) and elsewhere in this subchapter.

Best Regards,

My reply at the end of the week (06.26.20):

Thank you for contacting me. I apologize for my delay. Please see below.

A phone call and email on May 11, 2020:

Hi Daniel,

We talked for a few minutes today about the regulations for transporting lithium batteries for disposal. Just as a reminder, I asked if our company would be required to follow the DOT packaging and labeling requirements if we are picking up batteries at various facilities within our company and then transporting them to a recycling/disposal site ourselves.

Thanks for your time and your help!

My reply that same day:

Please see below.

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.

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.

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.

The Bullet:

During this public health emergency, USDOT/PHMSA is providing relief for certain hazardous materials (HazMat), e.g., sanitizing and disinfecting materials, transported for the purpose of protecting the health and safety of employees – and contractors – directly supporting the logistical operations of transportation companies.  The relief – as an enforcement discretion – mirrors the relief provided for HazMat transported under the materials of trade exception at 49 CFR 173 .6.

Carrier MOTS Relief Notice

Who:

• Pipeline and Hazardous Materials Safety Administration within the U.S. Department of Transportation (USDOT/PHMSA).
• Transportation companies within the U.S.

What is the materials of trade exception?

The materials of trade exception exempts certain hazardous materials and quantities in motor vehicle shipments from the requirements of the Hazardous Materials Regulations (HMR).  Under the HMR, a material of trade means a hazardous material that is carried on a motor vehicle for one of three reasons:

• Protecting the health and safety of the motor vehicle operator or passengers.
• Supporting the operation or maintenance of a motor vehicle.
• By a private motor carrier in direct support of a principal business that is other than transportation by motor vehicle.

Sanitizing and disinfecting products transported by a logistics company’s own transportation network to support the health and safety of employees at the company’s facilities do not meet any of these three definitions.  Therefore, the materials of trade exception will not address this specific need which is the intent of this relief.

For more information about the materials of trade exception, read: 49 CFR 173.6 – The Materials of Trade Exception

What is the relief?

USDOT/PHMSA gives notice that it will not take enforcement action against any carrier transporting sanitizing and disinfecting materials carried on a motor vehicle for the purposes of protecting the health and safety of employees of the carrier – this includes contractors working for the carrier – provided the following criteria are met:

• The sanitizing and disinfecting materials, such as hand sanitizers and spray disinfectants, are intended to allow employees to adhere to Centers for Disease Control and Prevention guidelines for protecting against COVID-19.
• The sanitizing and disinfecting materials are being provided to protect the health and safety of employees and eligible contractors who directly support the operations of the carrier, such as by sorting packages, loading and unloading packages, and driving delivery vehicles.
• The sanitizing and disinfecting materials are transported by motor vehicle.
• The shipment complies with the hazard class, quantity, packaging, hazard communication, and aggregate gross weight requirements specified in 49 CFR § 173.6 Materials of Trade provisions.
• Transport of these materials for purposes other than use by employees or contractors of the carrier (e.g., retail sale) is not authorized.

Where:

• This relief applies to transportation within the United States.

When:

• Date of issuance:  April 20, 2020.
• This Notice of Enforcement Discretion is effective while the COVID-19 public health emergency exists, or 90 days from the date of issuance of this Notice, 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 Transportation of Certain Sanitizing and Disinfecting Materials During the Coronavirus disease 2019 (COVID-19) Public Health Emergency

Why:

Because of the ongoing Coronavirus Disease 2019 (COVID-19) public health emergency, there has been a notable increase in the demand for products used for sanitization and disinfection purposes – many of which may be classified as HazMat for transportation as defined by the HMR.

• An alcohol-based sanitizer may be a Class 3 Flammable Liquid.
• A disinfectant may be a Class 8 Corrosive Material.

How:

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. We also prepare the public and first responders to reduce consequences if an incident does occur.

Conclusion:

This relief represents USDOT/PHMSA’s latest attempt to facilitate the transportation of hazardous materials in response to the COVID-19 public health emergency.  An earlier example:  Temporary Policy for the Transportation of Certain Alcohol-Based Hand Sanitizer Products During the Public Health Emergency (COVID-19) provides relief for new manufacturers and subsequent transporters of alcohol-based hand sanitizer.

Because of the ongoing COVID-19 public health emergency, the Pipeline and Hazardous Materials Safety Division within the U.S. Department of Transportation (USDOT/PHMSA) is providing temporary relief from the Hazardous Materials Regulations (HMR) for the manufacturers and subsequent transporters of alcohol-based Hand Sanitizers made under specific FDA guidance.

The purpose of this article is to identify and explain the requirements of the USDOT/PHMSA Temporary Policy for the Transportation of Certain Alcohol-Based Hand Sanitizer Products During the Public Health Emergency (COVID-19). (more…)

A special permit is defined at 49 CFR 171.8 of the Hazardous Materials Regulations (HMR) of USDOT/PHMSA as follows:

Special permit means a document issued by the Associate Administrator, the Associate Administrator’s designee, or as otherwise prescribed in the HMR, under the authority of 49 U.S.C. 5117 permitting a person to perform a function that is not otherwise permitted under subchapter A or C of this chapter, or other regulations issued under 49 U.S.C. 5101 et seq. (e.g., Federal Motor Carrier Safety routing requirements).

In a nutshell:  A special permit may be issued by USDOT/PHMSA to allow a person (e.g., shipper, carrier, or receiving facility) involved in the transportation of a hazardous material (HazMat) to perform a function that is not allowed by the HMR.

Special permits – once known as exemptions – may be granted to an applicant for an emergency situation or when a safe alternative to the HMR can be demonstrated by the applicant.

A person seeking a special permit has two options:

• Apply for a new special permit specific to its operations.
• Apply for party status to an existing special permit.  Hazardous Materials Special Permits Search Page

Persons seeking a special permit must submit an application to USDOT/PHMSA.  The application must meet the requirements of 49 CFR 107, Subpart B and include evidence that the special permit will achieve the same safety level of the HMR or is consistent with the public interest (i.e., the benefit to the public of the special permit outweighs the risk, such as in an emergency).  USDOT/PHMSA’s review of your application will include an evaluation of your compliance history.

If the special permit is granted, compliance with its conditions are the responsibility of the applicant; this includes training HazMat Employees on its conditions.  Special permits have an expiration date, a person wishing to continue use of a special permit must submit a new application prior to its expiration date.

A carrier transporting a HazMat under a shipper’s special permit or a shipper offering a HazMat for transport by a carrier using a special permit need not be a party to the special permit if it does not re-package the HazMat.

Also read:  USDOT/PHMSA’s Special Permit FAQs