DOT Issues Notice of Enforcement Discretion Regarding the Transportation of Hand Sanitizers to Address COVID-19 [Updated – see below*]
Originally published April 3, 2020.
On December 7th, DOT provided notice that it is extending this relief until March 31, 2021 for offerors and carriers who offer or transport hand sanitizers manufactured and packaged prior to October 31, 2020.
On April 2, 2020, the U.S. Department of Transportation (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a Notice of Enforcement Discretion (Notice) that provides temporary relief from certain aspects of the DOT Hazardous Materials Regulations (HMR) that normally apply to the transportation of ethyl alcohol or isopropyl alcohol-based hand sanitizers.[1]
Due to the Coronavirus Disease 2019 (COVID-19) public health emergency, demand for hand sanitizer has reached unprecedented levels. Many of these sanitizers are classified as Class 3 flammable liquids due to the alcohol content, which would trigger certain marking, labeling, packaging, documentation, and other compliance obligations for shippers (and carriers) under the DOT HMR. Although the DOT HMR already provide some regulatory relief for certain ethyl alcohol products in 49 CFR 173.150(g), this does not cover isopropyl alcohol products and it does not cover ethyl alcohol products in larger containers. To facilitate the availability of these products, PHMSA is providing temporary relief from certain HMR requirements.
The Notice indicates that the relief applies to companies producing hand sanitizer under a recently issued Food and Drug Administration (FDA) Guidance document and to those who subsequently transport the hand sanitizer.[2]
Importantly, it applies only to highway shipments by private, common, or contract carriers by motor vehicle) and not shipments by air, vessel, or rail.
If parties follow the procedures for preparing hand sanitizer for shipment set forth in the Notice (as compared to all of the requirements specified in the HMR), PHMSA will not take enforcement action for violations of the HMR. The Notice provides separate procedures for shipping small quantities (<1 gallon/container or 8 gallons/package) and for larger quantities (>8 gallons to 119 gallons/package) of hand sanitizer.
For any questions on this Notice of Enforcement Discretion, which expires on July 2 or when the public health emergency is declared over (whichever is sooner), or the shipment of hazardous materials in general, please contact us.
Trent Doyle (+1 202.434.4161), doyle@khlaw.com
*On December 7, 2020 PHMSA issued an updated Notice in which it indicates:
- PHMSA is reinstating and extending the Notice of Enforcement Discretion to offerors and carriers who offer or transport hand sanitizers manufactured and packaged prior to October 31, 2020, and in accordance with the previous Notices of Enforcement Discretion.
[1] https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2020-04/PHMSA%20Hand%20Sanitizer%20Relief%20Notice.pdf
[2] https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-provides-guidance-production-alcohol-based-hand-sanitizer-help-boost