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Exceptions, Exemptions and Variances

All Leniencies are not created equally

By Roberta C. Barbalace

[Jan. 16, 2006]

Exemptions, exceptions and variances are all viewed as leniencies that allow one to do something that would normally not be permitted according to regulation. The words then must be interchangeable, right? Actually there are major differences among these terms. The two most frequently confused leniencies are the exception and the exemption. That is understandable, since the names are similar, and they are the most commonly used leniencies in hazmat transportation. As you will note in the following explanations, variances rarely play a role in hazmat transportation except at the state and local level, or as it relates to another CFR, such as EPA, OSHA or DOL.

EXEMPTIONS

According to the definition found in 49CFR 171.8 "Exemption means a document issued by the Associate Administrator under the authority of 49 U.S.C. 5117. The document (exemption) permits a person to perform a function that is not otherwise permitted under subchapter A or C of this chapter, or other regulations issued under 49 U.S.C. 5101 through 5127 (e.g., Federal Motor Carrier Safety routing)."

However, in order to use an exemption, an individual or company must be the grantee of or a party to the exemption. The procedures for issuance, modification and termination of an exemption are prescribed in 49 CFR 107.101. Applications for an exemption or modification of an exemption must be submitted to the Associate Administrator for Hazardous Materials Safety at least 120 days prior to the requested effective date. (See sidebar for instructions for making application for an exemption.)

Any company or individual may make application to become a party to an application or existing exemption (except a manufacturing exemption). All exemptions are available for viewing on the http://hazmat.dot.gov. Should you want to become a party to an exemption, the following information should be provided in a letter or email:

  1. The exemption number.
  2. Name, street and mailing address of applicant, telephone, email address (optional); and if applicant is not an individual, the name, street and mailing address of applicant, telephone, email address (optional) of an agent.
  3. Applicant for party status is subject to all terms of the exemption including expiration date. The exemption renewal application found in 107.109 applies.
  4. Renewals must be submitted at least 60 days prior to the expiration date of the exemption.

Note that some exemptions require that a copy of the exemption be carried aboard any vehicle containing hazardous materials being shipped under that exemption. Other exemptions require only that a copy be maintained at the facility where they are offered or reoffered for transportation.

Some exemptions permit a person who is not a holder of that exemption to receive a package covered by a given exemption and re-offer it for transportation provided no modifications or changes are made to the package or contents, and it is offered in compliance with the exemption and the Hazardous Materials Regulations. Some exemptions require that every company receiving a package covered under that exemption be a party to the specific exemption. It is most important to read an exemption and understand the specific requirements for that exemption.

Exemptions all have an expiration date. At least 60 days prior to expiration, each application for renewal of an exemption, or a party to the exemption must submit an application for renewal. In addition to providing the information required on the original application for parties to an exemption (see above), the renewal application must include either a certification by the applicant that the original application, as it may have been updated by any application for renewal, is still accurate and complete, or an amendment indicating any updates, and certification that the application as amended is accurate and complete.

In addition, a statement must be included that describes all relevant shipping and incident experience related to the exemption since the last renewal. If there were no incidents, the applicant shall certify that. If known, the applicant should indicate the number of shipments or packages shipped under the exemption and the number of shipments or packages involved in any loss of contents, including venting, unless authorized in Subchapter C. See 49 CFR 107.9 (a)(6) for specifics on explosives carried on aircraft.

If the application is submitted by prescribed date, and is complete, the exemption will not expire until final administrative action on the application for renewal has been taken.

EXCEPTIONS

Exceptions are incorporated into 49 CFR and do not require that a company or individual apply for permission to utilize them. If an exemption survives the test of time, and proves to be a safe and effective way to package and transport hazardous materials, it may be added to 49 CFR as an exception.

Exceptions relating to the packaging of specific chemicals are listed in column 8A of the hazardous materials table. A good example of an exception is the "materials of trade exception" found in 49 CFR §173.6 that provides certain relief from hazmat regulations for hazardous materials (except hazardous waste) that are carried on a motor vehicle for the purpose of protecting the health and safety of the driver and/or passengers, for the purpose of supporting the operation or maintenance of a motor vehicle or by a private motor carrier in direct support of a principal business that is other than transportation by motor vehicle.

In 2005 a large number of exemptions were incorporated into the regulations. It is important, however, to read the exceptions that replaced the exemptions in order to ensure that there has been no significant changes in the wording that would affect the way in which a shipment must be packaged or transported. The exemptions affected include:

  • Exceptions for salvage cylinders: The use of non-DOT specification salvage including DOT-E 9507, 9781, 9991,10022, 10110, 10151, 10323, 10372, 10504, 10519, 10789, 10987, 11257,11459, 12698, 12790, and 12898.
  • Exemptions involving hazardous materials Class 3 and Division 2.1 including DOT-E 8278, 9004, 9048, 9162, 9287, 9305, 9352, 10228, 10596, 10765, 12047, and 12808.
  • Exemptions providing relief from Segregation of (1) cyanides, cyanide mixtures or solutions with acids; and (2) Division 4.2 materials with Class 8 liquids, on the same transport vehicle, including DOT-E 9723, 9769, 10441, 10933, 11153, and 11294.

VARIANCE

The term variance is not often associated with US DOT Hazmat transportation. Most often transportation related variances are granted by states or local government. A variance may be a very specific one-time relief from certain regulations for a specific company or individual. Occasionally a variance is extended to include several individuals or companies over a specified period of time.

An example of a variance being issued by the federal government might be the transport of a shipment of materials that according to the Hazardous Materials Table is forbidden. Such variances are not often granted unless such action is deemed necessary to protect health and safety. The specifics of a transportation variance that I am familiar with required among other things, the closure of a large segment of a major highway, evacuation of residents living too close to the highway and a police escort.

Variances at the federal level are more commonly granted by EPA (See 40 CFR Subpart C - Rulemaking Petitions).

Important Regulatory References

  • 49CFR 107.105 Procedure for Making Application for an Exemption
  • 49CFR 107.105 Application for renewal: Procedure for Exemption Renewal

Disclaimer

WARNING: These pages are for general reference and educational purposes only and MUST NOT be relied upon as a sole source to determine regulatory compliance or where matters of life and health are concerned. This site and the author do not warrant or guarantee the accuracy or the sufficiency of the information provided and do not assume any responsibility for its use.

To ensure regulatory compliance when transporting hazardous materials or dangerous goods, one must receive proper training and certification from a qualified instructor and refer to the current year's Code of Federal Regulations Title 49 (49CFR) or your country's shipping regulations. In matters regarding workplace safety, refer to current OSHA regulations (29CFR) and NIOSH guidelines or your own country's health and safety regulations. No one should ever enter into a hazardous environment without proper training from qualified instructors.

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