Here’s a dilemma for some retailers: You don’t have any hazardous materials regulated by the U.S. Department of Transportation (DOT), and you have a policy of not allowing them in your store. Should you display certain hazmat notices?
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According to guidance from the Pipeline and Hazardous Materials Safety Administration (PHMSA), the answer is yes for two reasons—and one reason is a bit more disconcerting than the other. Let’s look at both scenarios.
Scenario 1: Posting Notices
A major office supply company has a policy that it does not accept packages that contain hazardous materials. The company displays in-store signs to this effect, has advisory statements in the intake packaging processing system, has a contractual agreement with a major delivery service, and store staff is advised of questions to ask. The company asks if it is required under 49 CFR 175.26 to display notices informing those who offer hazardous materials for transport by aircraft of the requirements for transporting the hazmats and the penalties for noncompliance. The regulation specifies the information that is required and how it must be displayed.
Yes, say PHMSA officials. The regulation requires that anyone who accepts or transports cargo by aircraft to display notices that informing all who offer cargo for transport by aircraft of the requirements for transporting hazardous materials by aircraft and the penalties for violating these requirements. According to PHMSA, the intent of the notices is to provide these people with information that may help avert potential risks in aviation caused by undeclared hazardous materials.
There are two exceptions to this notice requirement:
- An unattended location, such as a drop box, provided a general notice advising customers of a prohibition on shipments of hazardous materials through that location is prominently displayed; and
- A customer’s facility where hazardous materials packages are accepted by a carrier.
The company protested, to no avail, that posting these notices may create an adverse effect on aviation and public safety.
Scenario 2: Offeror for All
Does the office supply company meet the definition of a “person” under DOT hazardous materials regulations (HMRs)?
Note. A “person” under the HMRs is anyone who performs or is responsible for performing any pretransportation function for transportation of the hazardous material in commerce and anyone who tenders or makes the hazardous material available to a carrier for transportation in commerce. This is the controversial and confusing definition of “offeror.”
Yes, says PHMSA. The company undoubtedly (emphasis ours) qualifies as a “person” under the HMRs when conducting its normal business activities pertaining to selling office products. According to PHMSA officials, the HMRs do not allow a company to be considered a person (i.e., offeror) for some purposes but not for others.
So, even if this were not the case, the company would unintentionally become a “person” if it were to accept an undeclared shipment for air transportation not knowing that it contained hazardous materials.
Possible Solutions
PHMSA suggests that the company apply for a special permit or that it request a change in the rule to obtain relief from the requirement.
Note About Special Permits
If you apply for relief from a requirement through a special permit, you must demonstrate an equivalent or greater level of safety to that intended by the regulation. Here’s what you need to do to apply for a special permit. When a company is granted a special permit, it receives a special permit authorization letter along with the special permit document itself. A new special permit may not exceed 2 years. Subsequent renewal applications may be granted for up to 4 years.
Under a plan developed in 2010, PHMSA is in the process of reviewing all active special permits and identifying those that should be incorporated in the HMRs, while noting that not all special permits are appropriate for incorporation.