After establishing that a particular item qualifies as a hazardous material and the person or business shipping the item is subject to the HMR, numerous follow-up questions arise. The following section provides a more nuanced look at the HMR, such as how the regulations deal with international shipments or product samples.
Do The HMR Apply to All Modes of Commercial Transportation?
Yes. The HMR applies to commercial transportation via highway, rail, vessel (cargo and passenger) and aircraft (cargo and passenger). Different modes have different restrictions, but the basic responsibilities incumbent on the entity offering the hazmat item for shipment (proper hazmat classification, identification, packaging, employee training) are basically uniform regardless of the transportation mode.
Many types of hazmat are prohibited from certain transportation modes, such as passenger aircraft. In other cases, only limited quantities of a particular hazmat are permitted on certain transportation modes. As a general matter, truck transportation is the least restrictive from a HMR compliance perspective.
Do The HMR Apply to International Shipments?
The HMR applies to all hazmat shipments within the United States, as well as international shipments originating in or destined for the United States. The Federal Aviation Administration (FAA) has a number of international offices that enforce the HMR in international situations. Other nations have their own hazmat transportation laws that have their own enforcement powers. International modal-specific organizations, like ICAO and IMO have highly sophisticated hazmat shipping protocols that are generally harmonized with the HMR. In most (but not all) cases, a shipment that complies with either the ICAO or IMO protocols would also comply with the HMR shipping requirements.
What About Sending Hazmat Items Via U.S. Mail?
The U.S. Postal Service (USPS) has its own separate rules regarding mailing hazardous materials, codified in the Domestic Mail Manual (see Section CO32) and further explained in a 1999 USPS guidance document called Publication 52. The USPS hazardous material rules are based on the HMR (the same basic definition, symbols and nomenclature are used), but the USPS rules are far more restrictive in terms of hazmat types and quantities permitted. Hazardous, Restricted, and Perishable Mail, U.S. Postal Service, Publication 52 at Section 3.2. (1999). Although there are some exceptions, only hazmat that can be classified as ORM-D is “mailable” under the USPS hazardous material rules. Id. Furthermore, there are extensive restrictions on sending hazmat via air mail and international mail. Id. Similar to the HMR, the onus for compliance with the USPS hazmat rules falls on the mailer, and there are substantial penalties for noncompliance. Id.
How DOT and The HMR Relate to Other Federal Agencies and Regulations
People and businesses subject to the HMR can also be regulated by other U.S. federal agencies and their regulations, including:
Do The HMR Apply to Consumer Products and Pharmaceuticals?
Surprisingly, a number of consumer products qualify as hazmat. These products include manicure sets, pressurized toiletries (such as hairspray), pharmaceuticals, batteries, and flammable items (such as paint). The HMR have special provisions for "consumer commodities" that generally require less stringent regulatory responsibilities. The HMR defines the term consumer commodity as: "a material that is packaged and distributed in a form intended or suitable for sale through retail sales agencies or instrumentalities for consumption by individuals for purposes of personal care or household use." 49 CFR §171.8. The definition of consumer commodity also includes drugs and medicines. Id. Although subject to less stringent responsibilities, consumer commodity shipping mistakes can still be subject to stiff administrative penalties.
No. Material Safety Data Sheets are critically important information tools for dealing with materials or products that can harm persons or property. In many cases, a properly completed MSDS will have information helpful in ascertaining whether a particular material qualifies as a hazmat. However, a MSDS by itself (which is actually a requirement under the Occupational and Safety Health Act, OSHA), does not satisfy a shipper's responsibilities under the HMR.
Can The Recipient Also be The Shipper?
Many companies are surprised to find out that they qualify as the “shipper” of hazmat. In fact, the HMR regulates both the actual transportation of hazmat as well as the offering hazmat for shipment by some other entity, such as an overnight delivery service or a freight company. Indeed, proper and accurate material identification is one of the cornerstones of the HMR because it allows everyone else in the transportation chain to make the right transportation safety decisions. Complicating this concept is the fact that the recipient of the hazmat shipment may also qualify as the shipper (and thus subject to HMR compliance responsibilities and possible penalties) in circumstances where the recipient arranges for the shipment.
Many commercial products are made up of ingredients that, in their pure forms, qualify as hazmat. However, when such ingredients are combined into a particular product, they might be in concentrations that are too low to exhibit any hazardous attributes, and thus the product may not even qualify as a hazmat. On the other hand, different seemingly innocuous ingredients may be combined in a manner that creates a wholly different set of transportation hazards. In other words, whether an item qualifies as a hazmat has less to do with the particular ingredients and more to do with the physical characteristics of the item as a whole.
Product samples are subject to the HMR. Fortunately, there are provisions in the HMR that make the sample shipments relatively less burdensome when the sample size is small. There are also provisions in the HMR for when the precise nature of a material is unclear, and the shipper wants to send a sample of the material to a testing facility. In these situations the HMR require that the shipper provide a tentative shipping name, hazard class, identification number and, if applicable, packing group for the shipment. In order to develop this tentative information, the shipper must have some basic information about the sample, such as likely ingredients, the sample’s intended use, the likely hazards the sample may pose, and the matter state of the sample. Permissible sample size and transportation modality depends on the tentative shipping information provided by the shipper.
Limited Quantities and Small Quantities
The HMR has provisions for both "small quantities" of hazardous material and 'limited quantities" of hazardous material. Though the intent behind these provisions is basically the same -- provide a less rigorous regulatory and packaging protocol for shipping a relatively smaller amount of hazmat -- the provisions are not interchangeable. First, there is only one "small quantity" exception in the HMR, 49 CFR § 173.4, and it applies to very small quantities (i.e. not exceeding 30 grams for authorized solids) of most hazard classes. By contrast, there are multiple "limited quantity" exceptions that are hazard class-specific and have relatively higher quantity limits. Second, shipping under the small quantity exception generally entails fewer regulatory steps than shipping under the various limited quantity exceptions.
Limited quantities provisions vary depending on amount, the mode of transportation and the type of hazard presented. In some cases, the limited quantity provisions do not fully apply when hazmat is shipped via air. While the small quantity exception and the various limited quantity exceptions can be quite helpful to a shipper, because proper application depends on a number of factors (quantity, hazard class, and in some cases transportation mode) the provisions must be used with caution.
What Happens When a Material Qualifies Under Multiple Hazard Classes?
When an item is not specifically listed on DOT’s hazmat table, and the item qualifies under more than one hazard class or division, the HMR requires that the item be classified (with some exceptions) under the more dangerous hazard class. 49 CFR §173.2a. The HMR has an exacting classification protocol that ordinate the different hazard classes. Id.
What Happens if it is Impossible or Unduly Burdensome to Ship an Item in Compliance With the HMR?
Industry is always developing new products and substances, not to mention finding new transportation needs for existing products and substances. Sometimes the shipping protocol specified in the HMR makes transporting a particular hazmat item extremely difficult or virtually impossible. The HMR has a built-in system to address these situations -- RSPA issued approvals and exemptions.
Approvals and exemptions permit an impacted party to request RSPA’s Office of Hazardous Materials Exemptions and Approvals for a waiver or substitution of certain HMR requirements. The main difference between approvals and exemptions is that the right to pursue an approval must be specified in the problematic HMR provision (such as the case with the HMR provision relating to packaging dangerous goods in equipment, machinery, or apparatus. 173.222(b)(3)). When the right to seek an approval is not indicated, the impacted entity can seek an exemption under 49 CFR subpart B. Impacted entities also have the ability to apply for “party status” to an existing exemption, which is essentially a “me-too” provision for an existing exemption. 49 CFR §107.107.
© 2004 Cramer Law Group PLLC