Beveridge & Diamond

DOT Proposes Reduced Requirements for Ground Transport of Certain “Reverse Logistics” Shipments

Authors: Elizabeth Richardson, Aaron Goldberg, and Ryan Carra
Beveridge & Diamond, P.C., August 11, 2014

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Today, PHMSA published a notice of proposed rulemaking (NPRM) that would ease requirements on ground transport of certain hazardous materials through “reverse logistics” systems.[i]  Such shipments would still be subject to certain packaging, hazard communication, segregation, training, and incident reporting requirements.  PHMSA is accepting comments on the NPRM until October 10, 2014.

Explaining the need for the current rulemaking, PHMSA noted that regulated entities often misunderstand or overlook hazard materials transportation requirements applicable to reverse logistics shipments.  The rulemaking comes amid recent crackdowns, notably by California state authorities, on retailer compliance with hazardous materials management requirements related to the handling of damaged or end-of-life consumer goods.

The proposal would establish new streamlined requirements for hazardous materials transported by motor vehicle as part of reverse logistics, defined as “the process of moving goods from their final destination for the purpose of capturing value, recall, replacement, proper disposal, or similar reason.”  The new provisions would be available for most, but not all, types of hazardous materials, subject to certain quantity limitations and other conditions.  For example, battery-powered equipment must have the batteries properly installed, and aerosols must have a cap to protect the valve stem.  Among the key requirements that would apply to these materials are the following:

  • Packaging.  Packaging would have to meet certain performance standards.  For example, inner packaging would have to be leak proof (for liquids) or sift proof (for solids), and the outer packaging for liquids would have to contain sufficient absorbent material to absorb the entire contents of the inner packaging.  Each material would have to be packaged in the manufacturer’s original packaging, if available, or a packaging of equal or greater strength.  Any compromised receptacles would have to be placed in an inner or outer packaging capable of preventing spillage during transport.
  • Hazard Communication.  Outer packaging would generally have to be marked with a common or proper shipping name to identify the contents.  Additional requirements would apply to gas cylinders.
  • Segregation.  Hazardous materials that could react dangerously with one another could not be transported in the same outer packaging.  Different hazard classes, however, could be transported in the same cargo transport unit, if they were adequately separated to prevent dangerous mixing in the event of an accident. 
  • Training.  Employees preparing reverse logistics shipments would be subject to reduced training requirements.  However, such employees would have to receive “appropriate training” to enable them to recognize the relevant hazardous materials, identify the associated hazards, and properly prepare the shipments.  The employer would have to keep records of the training.  In addition, the operators of motor vehicles would have to be informed of the presence of hazardous materials and the applicable requirements for reverse logistics.
  • Incident Reporting.  Shipments made under the proposed rules for reverse logistics would remain subject to existing incident reporting requirements.

The NPRM would also modify an existing exemption for reverse logistics shipments of lead-acid batteries to allow pickup of such batteries from multiple locations for purposes of recycling.

There are several notable ambiguities in the proposal, including what is meant by “final destination” in the reverse logistics definition.  Also, it is not clear to what extent lithium batteries could be shipped under the reverse logistics rule, considering the extensive rulemaking on lithium batteries that PHMSA recently concluded.  Moreover, the marking standard could be more onerous than current rules, to the extent it requires a specific common name to be used for each material in a package, as opposed to generic names, such as “consumer commodities.”  Finally, the exemption is limited to motor vehicle transport and does not account for reverse logistics movements from Hawaii, Alaska, Puerto Rico, or the Virgin Islands, where motor vehicle transport to the continental United States is either impossible or impracticable. 

Beveridge & Diamond helps manufacturers, retailers, recyclers, logistics providers, and other companies ensure that the transportation of new and used products is in accordance with the DOT PHMSA Hazardous Materials Regulations and the international dangerous goods regulations. For more information on this proposed rule and the potential impact on your company, please contact the authors or any member of our Hazardous Materials Transportation Practice.




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