Offering Hazmat for Shipment
In the broadest of terms, a person or business offering hazmat for commercial shipment has four basic tasks: (1) classify and describe the hazmat item in accordance with the HMR; (2) determine that the packaging or container is authorized packaging under the HMR; (3) provide employee training; and (4) provide emergency response information.
Classifying and Describing Hazmat
Classifying and describing a hazmat item in accordance with HMR can be reduced to a single concept -- hazard communication. Hazard communication is the linchpin for safe transportation of hazmat -- without proper hazard communication, the system simply cannot function. There are two basic aspects of hazard communication (1) information about the hazmat and (2) displaying the hazmat information.
Hazard Communication Step 1: Information about the Hazmat
The first piece of information is the hazmat’s “shipping name.” The HMR provides a list of thousands of shipping names in a lengthy table at 49 CFR §172.101 (the “table”). All of the shipping names in the table correspond to a general hazard class or division. The entity offering a hazmat item for shipment is responsible for selecting the most appropriate name from the table. 49 CFR § 172.200.
In many cases, selection will be fairly straight forward -- there are numerous specific entries such as gasoline, matches, first aid kits, and lithium. Selection can be more complicated when there is no specific listing, but the item still qualifies as hazmat because of a hazardous attribute (a liquid having a flashpoint below the HMR flammable liquid threshold or a mixture of compressed gases). As a general matter, when there is no specific shipping name listing, an appropriate generic shipping name must be selected, e.g. flammable liquid, n.o.s. (not otherwise specified).
After establishing an item’s proper shipping name, the following additional basic information must be specified: hazard class and division, international identification number, the appropriate packing group, and the quantity of material shipped. Depending on the type of hazmat and the transportation mode, other types of information can also be required.
Hazard Communication Step 2: Displaying the Hazmat Information
Hazmat information is displayed in a number of redundant manners including: (1) shipping papers; (2) package marking; (3) package labeling; and (4) placarding.
The following types of documents qualify as shipping papers: shipping orders, bills of lading, shipping manifests, or other documents serving the same purpose. 49 CFR §171.8.
Shipping papers must be in English and present (among other things) a hazmat’s shipping name, hazard class and division, international identification number, the appropriate packing group, and the quantity of material shipped. 49 CFR § 172.201. In addition, the shipping papers must provide an emergency response telephone number, and to the extent that the shipping paper references both hazmat items and non-hazmat items, the hazmat items must be listed first and either be highlighted or printed in a contrasting color. Id. Additional transportation mode-specific information is sometimes also required. See, e.g. 49 CFR § 203.
Hazmat shipping papers must also include a certification statement by the person or business offering the hazmat for shipment. The HMR provides alternative versions of this statement, one being:
“This is to certify that the above named materials are properly classified, described, packaged, marked and labeled, and are in proper condition for transportation according to the applicable regulations of the Department of Transportation.”
49 CFR § 172.204. Many pre-printed shipping paper forms already contain one of the HMR hazmat certification statements.
Additional Shipping paper requirements, such as listing any subsidiary hazard class or division, and specifying the number and types of packages in a given shipment, are scheduled to become effective on October 1, 2005 and October 1, 2007, respectively. 49 CFR §§ 172.202 and 171.14.
Markings are the descriptive names, identification numbers, instructions, cautions, weights, specifications, United Nations (UN) marks, or combinations thereof required by the HMR to be on the outer packaging of hazmat shipments. 49 CFR §171.8.
Markings must be durable, written in English, and must be printed on or affixed to the surface of the package, or on a label tag or sign. 49 CFR § 172.304(a). Markings cannot be obscured, and must be presented in contrasting colors, away from non-hazmat marking (such as advertisements). Id.
There are different marking requirements for bulk and non-bulk shipments. For example, non-bulk packages must generally be marked with either the consignee or consignor’s name and address. 49 CFR §172.301(d). In addition to the general and bulk/non-bulk marking requirements, there are certain hazard class-specific marking requirements for radioactive material, liquid hazardous materials (in non-bulk packaging), poisonous materials, explosive materials, marine pollutants, other regulated material (ORM-classified), hazardous substances, and elevated temperature materials. 49 CFR 172 subpart D.
Non-bulk packages shipped by air must bear the "Air Eligible" mark indicating that the package meets the applicable requirements for air transportation. 49 CFR § 172.321. There are exceptions to this requirement (e.g., packages transported under the HMR's small quantity exception, or items that are otherwise excepted from marking requirements. Id.
Hazmat labels and placard are what most people know about hazmat – they are the diamond (square on point) shaped symbols that come in different colors. The different colors and symbols correspond to different hazard classes and divisions. In addition to the colors and symbols, labels and placards usually have descriptive words like “oxidizer” or “inhalation hazard” and also specify hazard class and hazard division. 49 CFR § 172 subparts E and F.
As a general matter, labels are attached to non-bulk packages (and also certain
bulk packages), 49 CFR § 172.400(a), and placards are attached to bulk packaging, unit load devices,
transport vehicles and rail cars. 49 CFR § 172.504. The HMR has specifications for size, color,
placement and durability for both labels and placards. 49 CFR §§ 172.407 and 172.519, respectively.
Certain hazard classes, including Classes 3, 8, 9, and certain hazard divisions, including 4.1, 4.2,
4.2, 5.1 and 6.1 can be exempted from the HMR labeling and placarding requirements
under certain circumstances (excluding shipment via passenger aircraft). 49
CFR §173.13.
To be offered for commercial transportation, hazmat items must be packaged according to the HMR. 49 CFR § 173.1. Under the HMR, the hazmat packaging depends on a number of factors, including the item’s (1) shipping name; (2) the item’s packing group; (3) whether the items is being shipped in either bulk or non-bulk volumes; (4) the mode of transportation; and (5) applicable packaging exceptions. As a general matter, all packages used for shipping hazmat must be designed and used so that the hazmat is not released under conditions normally incident to transportation; and the effectiveness of the packaging remains reasonably constant through the course of transportation. 49 CFR §173.24. There are also general packaging requirements for transportation via aircraft. 49 CFR §173.27.
Once determining a hazmat item’s shipping name, the offering entity must then determine the item’s “packing group.” Under the HMR, a packing group is a grouping according to the degree of danger presented by hazardous materials; Packing Group I indicates great danger; Packing Group II, medium danger; Packing Group III, minor danger. 49 CFR §171.8. An item’s packing group is based on the item’s physical attributes, and packing group designation will determine whether it is permitted on a particular transportation mode, and if so, in what amount. A particular shipping name (such as flammable liquid, n.o.s.) can have multiple packing groups. 49 CFR §172.101(f). On the other hand, Class 2, Class 7, Division 6.2, and ORM-D materials do not have any packing groups. Id.
After determining an item’s shipping name and packing group, the hazmat table at 49 CFR §172.101 can be consulted to determine the appropriate packaging requirement depending on the size of the shipment (bulk vs. non-bulk), transportation mode, and applicable packaging exception.
The HMR distinguishes between bulk and non-bulk shipments of hazmat. Many, but not all, types of hazmat can be packaged either way. The delineation between bulk and non-bulk packaging is 119 gallons, 882 pounds, and 1000 pounds (water capacity) for hazmat liquids, solids and gases, respectively. 49 CFR §171.8. Notwithstanding these delineations, as a practical matter, the distinction has more to do with format than the total volume or weight of a shipment. Bulk shipments generally refer to hazmat contained in very large containers, such as rail cars tanks. Non-bulk shipments refer smaller packaging formats that fit inside cargo holds, such as boxes and crates. When appropriately packaged, non-bulk hazmat items cannot be aggregated to trigger the HMR’s bulk packaging requirements. In other words, the term “bulk” refers to the packaging format rather than the total size of the shipment, or the number of individual hazmat items shipped.
Specification Packaging v. Non-Specification Packaging
The HMR proscribes either specification packaging or non-specification packaging. Specification packaging is manufactured and tested according to the provisions of 49 CFR part 178. Depending on the hazmat item being shipped, non-specification packaging is more of a subjective standard (i.e. a “strong outer package”).
There are packaging exceptions for most hazmat categories, including Class 2, Class 3, Class 4, Divisions 5.1, 5.2 and 6.1, Class 8, Class 9 and ORM-D materials. 49 CFR part 173, subpart D. The exceptions generally allow for less stringent packaging and hazard communication requirements. However, the packaging exemptions only apply to certain packing groups when particular quantity limits are met. For example, the packaging exception for corrosive liquids only applies to packing groups II and III, and has quantity limits of 1 and 4 liters, respectively. 49 CFR §173.154(b).
In some cases the packaging exemption provisions allow for a hazmat to be reclassified as an ORM-D material if the hazmat meets the HMR definition of consumer commodity. e.g., 49 CFR §173.154(c). ORM-D materials are generally the most lightly regulated hazmat, and sometimes do not even require shipping papers (unless shipped via aircraft). Id.
Any business that uses its employees in connection with transporting hazmat
in commerce or causing hazmat to be transported or shipped in commerce qualifies
as a “hazmat employer” under the HMR. 49 CFR §171.8. The HMR
defines a hazmat employee as a person who, in the course of their employment,
directly affects hazardous materials transportation safety and specifically
includes employees that prepares hazardous materials for transportation. Id.
The HMR requires general awareness and function-specific hazmat training for
every employee involved in shipping dangerous goods. 49 CFR § 172.704.
General awareness training refers to a basic familiarity with the HMR, and was
amended in 2003 to include a security awareness component regarding the security
risks associated hazardous materials transportation and the methods designed to
enhance transportation security. Id.
Function-specific training must be customized so that it relates to the particular hazmat-related
tasks performed by the employee. Id.
Companies required under the HMR to have hazmat security plans must also provide employees with in-depth security training (in addition to security awareness) addressing company security objectives, specific security procedures, employee responsibilities, actions to take in the event of a security breach, and the organizational security structure. Id.
Hazmat employers are responsible for keeping training records, and hazmat employees must receive training at least every three years. Id. There are no DOT “approved” or “certified” curriculum or coursework – under the HMR the hazmat employer is tasked with making sure that the training meets the requirements in the HMR. To the extent that a hazmat employer works with a hazmat employee training consultant, the employer should expect to work with the consultant to customize the function-specific aspects of the hazmat training.
Emergency Response Information
Emergency response information is information that can be used in the mitigation of an incident involving hazardous materials and, at a minimum, must contain the following basic information:
In addition to providing emergency response information, the person or business offering hazmat for commercial shipment must also provide an emergency response telephone number (including the area code or international access code) to be used in the event of an emergency involving the hazmat. 49 CFR §172.604(a). The telephone number must be monitored at all times the hazmat item is in transportation (including transportation incident to transportation) by someone that knows what to do in the event of an emergency. Id. Although the person or business can take on this responsibility, it can also be contracted out to a third party. 49 CFR §172.604(b).
The HMR emergency response information requirements do not apply to certain types of hazmat, including battery powered equipment and vehicles, consumer commodities, internal combustion engines, wheel chairs, and vehicles powered by either flammable gas or flammable liquid. 49 CFR §172.604(c).
© 2004 Cramer Law Group PLLC