{"operation":"document","citation":"00-0263","title":"McCarthy, Sweeney &amp; Harkaway, P.C. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2000-11-16","effective_on":null,"summary":"00-0263 response to McCarthy, Sweeney &amp; Harkaway, P.C. concerning 173.226.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-00-0263.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-00-0263.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-00-0263","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2000/000263.pdf","body":"<<<PAGE 1>>>\n\nUS Departmens\nof transportation\n400 Sevenn Steer SW\nWashungion, DC\n20350\nResearch and\nSpecial Programs\nAdministration\nNOV 1 6 2000\nMr. Lawrence W. Bierlein\nRef. No. 00-0263\nMcCarthy, Sweeney & Harkaway, P.C.\nSuite 600\n2175 K Street, N.W.\nWashington, D.C. 20037\nDear Mr. Bierlein:\nThis is in response to your September 22, 2000 letter regarding selective testing variations for\npackagings under the Hazardous Materials Regulations (HMR, 49 CFR Parts 171 to 180). Your\nrequest concerned the applicability of the selective testing variations found in § 178.601(g) to a\npackaging for a material that is toxic by inhalation.\nAs provided by § 173.226(c), a material that is toxic by inhalation in Hazard Zone A may be packaged\nin a combination packaging consisting of an inner packaging system and an outer packaging. The inner\npackaging system consists of an impact resistant inner receptacle packed within a leak-tight packaging.\nThis combination packaging in turn is packed within the outer packaging. Both the inner packaging\nsystem and the outer packaging must conform to the performance test requirements of subpart M of\npart 178. You ask if an inner packaging system which has been tested to packing group 1 performance\nlevel may utilize the variations provided in § 178.601(g).\nIf the inner packaging system is tested in accordance with the requirements in subpart M of Part 178\nand marked in accordance with § 178.503 as a UN standard packaging, then you may use the\nvariations provided in § 178.601(g). If the inner packaging system has not been marked as a UN\nstandard packaging, there is no provision for variations of inner packagings.\nI hope this satisfies your request.\nSincerely,\nDirector, Office of Hazardous\nMaterials Standards\n\n<<<PAGE 2>>>\n\n\"'\n•\nNOV 1 6 2000\nMr. Lawrence W. Bierlein\nRef. No. 00-0263\nMcCarthy, Sweeney & Harkaway, P.C.\nSuite 600\n2175 K Street, N. W.\nWashington, D.C. 20037\nDear Mr. Bierlein:\nThis is in response to your September 22, 2000 letter regarding selective testing variations for\npackagings under the Hazardous Materials Regulations (HMR, 49 CFR Parts 171 to 180). Your\nrequest concerned the applicability of the selective testing variations found in § 178.601(g) to a\npackaging for a material that is toxic by inhalation.\nAs provided by § 173.226(c), a material that is toxic by inhalation in Hazard Zone A may be packa\nin a combination packaging consisting of an inner packaging system and an outer packaging. The\npackaging system consists of an impact resistant inner receptacle packed within a leak-tight packag\nThis combination packaging in turn is packed within the outer packaging. Both the inner packagin\nsystem and the outer packaging must conform to the performance test requirements of subpart M o\npart 178. You ask if an inner packaging system which has been tested to packing group 1 performa\nlevel may utilize the variations provided in § 178.601(g).\nIf the inner packaging system is tested in accordance with the requirements in subpart Mi of Part 1'\nand marked in accordance with § 178.503 as a UN standard packaging, then you may use the\nvanations provided in § 178.601(g). If the inner packaging system has not been marked as a UN\nstandard packaging, there is no provision for variations of inner packagings.\nI hope this satisfies your request.\nSincerely,\nEdward T. Mazzullo\nDirector, Office of Hazardous\nMaterials Standards\nOFFICIAL FRE COPY\n\n<<<PAGE 3>>>\n\nSEP-22-0017.22\n09/9/00\nFROM\nWUULIVUS\nPAGE\nFACSIMILE COVER SHEET\nU.S. DEPARTMENT OF TRANSPORTATION\nRESEARCH AND SPECIAL PROGRAMS ADMINISTRATION\n• OFFICE OF HAZARDOUS MATERIALS ENFORCEMENT.\n\"¡ester Region\"\n820 Beat Tavera Road, Sulic 306\nWest Treaton, New Jersey 08628\nTELEPHONE: (609) 989-2256\nBAX: (609) 989-2277\n3\nDate:\n2/7/00\n_ Time:_\n_ Nuraber of Pages (actuding Cover Soot.\nIocatica:\nALL -PAK:\nPax Number\n(716) 633-7745\nFrora:\nCHRIS MICHALSIC/\nCommenis:\nPER OUR BRONE \"COURSATION, TINCLOSTS\nPURSE FIND THE FUT BEFING TATIARRD. BE ME\nPEASE CAL ME LE YOU BAVE AY MOPITIONDL\nQUESTIONS SERMINE IN TUS EXIT INITELNE.\n\n<<<PAGE 4>>>\n\nSEP-22-00\n08/07/00\n17.21\n11:58 YAN GUN VOK LEAS\nFROM.\nPACE.\n6\nU5 Departnaik\nOtice of Hazardous\nB2D BACE TAvaro Ra, Sta. 306\nof Transportation.\nMaterials Entorcament\nSpecial Prograstis\nResearch and\nEastam Region\n(003)989-2258\nWest Trenton, N/ 08528\nFax B09 S8a 22T7\nAdministration\nSOCIT BRIEFING\n\"(Fais document is not a ilnal roport.,\nDate: 2/2/00\nReport control #: 0042/03/\nompany taro: -\nALL PAKiNG\nsddress:\n4225 GENESSE ST, BUEFALO, NY 14225\nHANE O8 INDIVIDUAIS RECBIVING IRISIONO:\nNames -\nRAY NATT\nNatas\nritic:.\nTitla:\n5121(C). Tuls exit brialing addresser orly the sioss noted, and it 13 sot & Ilnding of\nIblo 1a6 been a compllanca inspootion, carductad in accordanca vita Titla 49 V.S.C. Scotion\ngeneral compliance in any othor dinax conorad by too Hazardous Matarials Regulations that\nvexe subject to tha Laspection.\n\"Duriag the courRo of the inspectios the folloriar probable violationa of\n49 CTS and/on.\nquality control itoas nato rotod:\nPROBABLE VIOLATIONS:\nsection:\nExplanation:\n17860162) 8173.222/67(2)\nCERTIFYNG. PACINGES AIMAKTING THE UN SENNOBRE\nFOR PIM SHIPMANES, NHEN THE PROPITR DESIGN\nQUALITICATION TESTING WAS NOT- CONDUCTTO..\nsection:\nIxplanation:\n178.503(4118)\nFAILURE TO LUE JAT NAMIR AND SOURTUS OR AUTMORIZEN\nSYMBOL IN. IME IN CERFIFIGATION FOR PACHGES.\n(TENAFE 'S CERTIFICATION USED ON jA NÃN SIESIGN.\nNOT TÁSTRA SY TRN-TE).\nU.S.D.O.T ARSPNOENO\nExhibit l.\nReport 8.\n\n<<<PAGE 5>>>\n\nSEP-22-00 17,22 FROM.\nит.\n03/07/00\n-FIXXXLXXX\nPACE\nnda desament in rot a final report.\nhap dean and an erotions noted ate eated pet the\nfinalizing the report. Probable yiolation(S) nay be renoved ox others nay\nba added during this revicu.\nIs addition, quality control iters nay. be\nravised to becore probable volations during this ravier.\nUpon deterination that a probable violatios axiats,\nthe Associate\nadminiatzator for Hazardous Matorials gafety, is authorizca to imposc\ncertaini sanctions, inaluding warning letters, complianco ordaza; and civ!!\ncout actions, including Injunctive ox erstinal\nproccedings, may be initiated.\nIstle 49 U.S.C.\nSactione 5123 and 5124\nprovido lox civil and' oxininal penáltias lor violation of the Hazardous\nMatoxials Regulations.\na civil penalty of not zore than $27,500, but not less taan $250, pa\ntan Office of chief Coursal of the Research end Sprolal Programs\nviolation say be imposed througu administrative proccedings initirted b\nAdministration.\nWhen a cximinal. violation has been deterained by a cout,\na fine, or imprisonment Lox not tore than 5 years, or both, ray be imposod\nror cach violation.\nor sarotions imposed.\nDocumentation of corroative action submittad in waiting to the inspector\nwithin 30 days or the inspection' nay be considerca for mitigation should\npenalty. Iorever, any documanted corxective action vould not aliminate or\nthe 'sanation inposed rasult in the issuanca oi a notico propoting a civil\ngraclude the initlation of a civil penalty procceding, a finding of\nviolation, or assessment or a civll penalty. \" .\n10 Régional Fairnesa Boards were establíshed tó receíve coments fron small\nTho Snall Business and Agricultural Regulatory Enforcoment ombudasan and\nbusinesses about fedcral agency onforcerent activities. The Ombudsman will\nannually evaluate these activities and rate each agency's rasponsiveness\nactivities of the Rescarch and Specíal Progzans Adainistration, call 1-888-\nto small business. \"It you wish to cornent on the inspeation and xelated\nREG-ENIR (1-888-736-3247).\nI certify that I raceived tha abova briefing as it' appears on this lora.\nwith its contents.\n2peсtо(3)\nsignatura of Representativo (5)\n917/00\nDate\nDate\nx\nReports.\nErbibit It\nPage -\nof\n\n<<<PAGE 6>>>\n\nSEP-22-00\n17.20 FROM.\nID.\nPAGE 2\n•\nLAw Offices\nLAWRENCE W. BICALEN\nMCCARTHY, SWEENEY & HARKAWAY, P.C.\nFACSIMLE\nJOHN M. CUTLER, Je\nDOUGLAS MI. CANTER\nSUITE 600\n(202) 393-5721\nSTEVEN J, KAUSH\nANDREW P. GOLOSTEN\n2175K STREET, N.W.\nE-Mat\nHARVEY LI RETER\nRICHARO D, LIEBERMAN\nWASHINGTON, D. C. 20037\nMSH@MSMACCOM\n(202) 393-5710\nHTT///WWW.MSHPC.COM\nWEBSITE\nOr COUNSEL\nDANIEL S. SWEENEY\nJohnsen\nSeptember 22, 2000\n2173.226(c)\n2118.601\nPackaging\nMr. Chris Michalski\nOffice of Hazardous Materials Enforcement\nResearch & Special Programs Administration\nTestina\nDeo Bear Tave road, Suite 306\n90-0265\nWest Trenton, NJ 08628\nRe:\nAll-Pak; September 9 Exit Briefing\nDear Mr. Michalski:\nThank you for the opportunity to respond to the September 9, 2000, exit briefing\nyou sent to Ray Watt of All-Pak (copy attached). As noted in your telephone\nconversations with Mr. Watt, I believe there is a difference of opinion on the proper\ninterpretation of the regulations and, by copy of this letter, I am asking Mr. Mazzullo to\nlook at the issue.\nAll-Pak manufactures combination packaging for use by shippers of TIH\nmaterials under the rule applicable to them in 49 CFR 173.226(c). I first would like to\nnote that you allege a violation of this Part 173 provision by All-Pak, and I suggest that as\na packaging manufacturer the appropriate citation against the company, if any, would be\nunder Part 178, not Part 173.\nThe shipper is advised under Section 173.226(c) that, for combination\npackagings, \"both the inner packaging system and the outer packaging must conform to\nthe performance rest requirements of Subpart Ml of Part 178 of this subchapter, at tbe\nPacking Group I performance level.\"\nSubpart M of Part 178 is entitled \"Testing of Non-Bulk Packagings and\nPackages,\" and it covers Sections 178.600-609. Thus, it includes not only Section\n178.601(c)(2), which you cite, but Section 178.601(g), which describes selective testing\n\n<<<PAGE 7>>>\n\nSEP-22-00 17,20 FROM.\nID»\nPAGE\n3\n:\"\nvariations. As I understand it, you contend that Section 178.601(g) is inapplicable, and\nthat is our point of difference that I ask Mir. Mazzullo to address.\nThe situation is that All-Pak manufactures, marks, and sells a packaging for TIH\nshippers. This is a combination packaging consisting of the inner receptacle holding the\nproduct, a leak-tight absorbent pouch inner roceptacle, a removable-head canister, a\nplastic bag, and padding within an outer fiberboard box. This packaging has been third-\nparty tested by Ten-E Packaging.\nOne of All-Pak's customers, Dow Agro, had filled packages of this type in\nstorage in the field. Their own people discovered that the metal removable head canister\ninside the filled packaging was rusting and they wanted to change it, in the field, to a unit\nthat was not subject to such corrosion. A plastic removable head canister was considered\nfor this purpose.\nAll-Pak identified a suitable plastic removable head canister of similar design 1o\nthe metal unit. The company believed it would be sufficient, but before determining that\nthis was an acceptable substitute, All-Pak performed cold drop resting on this inner\ncanister. The results confirmed All-Pak's expectations. At the same time, All-Pak\ncontacted Ten-E for subsequent testing of the completed packaging but the employee in\ncharge of this project died befure this work was completed.\nWhile we acknowledge that prudence would have had All-Pack test this\neclaming as a violation of the regulations as saying that failure 10 have this testing\nSpecifically, Section 178.601(g)(1) provides a selective testing variation under\nwhich additional testing is nos required.\n• The conditions of this variation arc important.\nFirst, the inner packagings of a combination packaging must be of similar design to the\ntested inner packagings. Here it was not the inner that was changed but insicad an\nintermediate open-head packaging holding two inner receptacles, the bottle and the\npouch. Ihe canister was of similar dimensions as the replaced unit.\nSecond, the material of construction of the inner packagings (glass, plastic, melal,\netc.) offers resistance to impact and stacking forces equal to or greater than that of the\noriginally tested inner packaging. The intermediate removable-head unit, by All-Pak's\nown drop testing and their substantial knowledge of the dynamics of combination\npackaging, had this strength. To respond to your concems, All-Pak since has confirmed\nthis fact through Ten-E but, in our view, such confirmation was not required. A copy of\nthe Ten-E retest report will he sent to you by the company under separare cover.\nThird, the inner packagings had to have the same or smaller sized openings and\nthe closure was of similar design. The innermost packaging unit and the inner receptacle\n(pouch) were unchanged, With regard to the removable-head canister, both units are\nremovable head drums and, in fact, the plastic unit with a clip-on feature is more secure\nthan the tested metal cover.\n\n<<<PAGE 8>>>\n\nSEP-22-00 17,21 FROM.\n1D.\nPAGE\n4\nFourth, cushioning must take up void spaces, and the expanded polystyrene pads\ndo this. Fifth, the inner packaging orientation must be the same, and it was. Sixth, the\ngross mass must not exceed that originally tested, and it did not.\nUnder Selective Testing Variation 1, therefore, which is an integral part of\nSuopart M of Part 178, All-Pak did not have to test the plastic intermediate unit at all.\nThe company did perform some tests to bolster their own expectations and subsequently\nAll-Pak had Ten-E re- perform all the tests, but we do not agree with your\ncharacterization in the Exit Briefing that All-Pak's actions constitured \"probable\nviolations.\"\nYou make a second allegation, that the marking on the packaging was not\nchanged. As noted above, your contention only carries weight if one concludes that\nVariation 1 is inapplicable and, we submit, nothing in the regulations confirms your view\non this point.\nIn conclusion, a customer was faced with an urgent problem with packaging\nalready filled in the field. All-Pak worked with that customer to fashion a solution to that\nproblem. Variation 1 envisions changes to tested packagings without retesting, under\ncertain conditions. All-Pak met those conditions. Subsequent testing by Ten-E verifies\nthat the company's conclusions with regard to this change were valid, and that no safety\nissuc is involved.\nTherefore, we ask that you not proceed with this invessigation or any subsequent\npenalty claim. Please contact me if you have any questions on this letter or our reading\nof the applicable regulations.\nSincerely,\nawrence W. Biericin\ncc:\nEdward I. Mazzullo, Director\nOffice of Hazardous Materials Standards\nRay Watt, All-Pak","truncated":false,"body_characters":14414}