Agencies Issue Joint Guidance Regarding Bulk Shipment of Hazardous Chemicals

The Pipeline and Hazardous Materials Safety Administration ("PHMSA"), a division of the United States Department of Transportation, implements the Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq., which is the primary federal statute governing the transportation of hazardous materials. PHMSA's standards are referred to as the Hazardous Materials Regulations ("HMR"). 49 C.F.R. Parts 100 to 180. Pursuant to the Occupational Safety and Health Act, 29 U.S.C. 651 et seq., the Occupational Safety and Health Administration ("OSHA"), a subset of the United States Department of Labor, also oversees the handling of hazardous chemicals when such materials are used in the workplace. OSHA's regulations are referred to as the Hazard Communication Standard ("HCS"). 29 C.F.R. § 1910.1200.

The regulated community has occasionally expressed confusion as to which agency's standards are applicable in certain situations. In particular, a July 2015 OSHA directive declared that manufacturers and importers of hazardous chemicals must label all containers in a manner that is compliant with the HCS "prior to shipping." Some stakeholders questioned whether, based on OSHA's guidance, the HCS should be interpreted to apply to hazardous materials that are also within the jurisdiction of PHMSA. This issue was further confused by a provision in the HMR that prohibits differing or conflicting labeling. See 49 C.F.R. § 172.401(b) ("No person may offer for transportation and no carrier may transport a package bearing any marking or label which by its color, design, or shape could be confused with or conflict with a label prescribed by this part.").

Joint Guidance

On September 19, 2016, OSHA and PHMSA released a joint guidance memorandum titled Labeling of Hazardous Chemicals for Bulk Shipments. The agencies stated that the purpose of the memorandum is to clarify the applicability of their respective requirements for the labeling of hazardous chemicals, with an emphasis on the issue of bulk packaging used in both transportation and in the workplace.

The joint memorandum will assist the regulated community in implementing the HCS and the HMR. Key points from the guidance include the following:

• The HCS labeling requirements are not applicable to shipping containers that are in transport.
• The HCS applies to the labeling of hazardous chemicals in the workplace, both before and after transportation in commerce.
• The HCS requires either labeling the immediate container with hazard information or transmitting the required label so that it is immediately available to workers upon the receipt of a shipment. These HCS requirements apply independently of whether the same material is subject to the HMR labeling requirements during transportation.
• The display of a marking or label that conforms with the HCS is not a violation of the HMR.
• An HCS-compliant label and an HMR-compliant label may both appear on the same package.

Chemical manufacturers and other entities subject to these regulations should evaluate this newly issued guidance and ensure that their operations are consistent with both the HMR and the HCS.

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