{"operation":"document","citation":"00-0332","title":"Goldfarb, Sturman & Averbach — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2001-01-29","effective_on":null,"summary":"00-0332 response to Goldfarb, Sturman & Averbach concerning 172.312.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-00-0332.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-00-0332.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-00-0332","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2000/000332.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\n400 Seventh St., S.W.\nWashington, D.C. 20590\nSpecial Programs\nResearch and\nAdministration\nJAN 29 2001\nMr. Steven L. Feldman\nRef. No: 00-0332\nGoldfarb, Sturman & Averbach\nNineteenth Floor\n15760 Ventrua Boulevard\nEncino, CA 91436-3012\nDear Mr. Feldman:\nThis responds to your November 30, 2000, letter requesting clarification of orientation arrow marking\nrequirements in the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). You describe a\npackaging that consists of one-gallon polyethylene containers of liquid hydrochloric acid placed within\nopen-topped polyethylene crates. This packaging configuration is manufactured under a DOT\nexemption (DOT E-6614).\nYour questions have been paraphrased and answered as follows:\nQ1. Is the above packaging configuration considered a combination packaging or polyethylene\ncontainers inside an overpack?\nA1. The packaging configuration you have described meeting the requirements of DOT E-6614 is\nconsidered a combination packaging. The inner polyethylene containers are not authorized for shipment\nas a single packaging; they must be placed in the outer open-topped polyethylene crate to meet the\nterms of the exemption, and thus be shipped as a combination packaging.\n02. If each one-gallon polyethylene inner container that has a screw cap is hermetically sealed, must\nthe outer container be marked as required by § 172.312?\nA2. The answer is no. As provided by § 172.312(c)(5), a non-bulk packaging with hermetically\nsealed inner packagings need not be marked with orientation arrows.\n000332\n172.312\n•\n\n<<<PAGE 2>>>\n\nQ3. Does DOT E-6614 provide for an exception to § 172.312?\nA3. The answer is no. DOT E-6614 provides relief from the packaging requirements of §§ 173.202\nand 173.203 only.\nI hope this information is helpful.\nSincerely,\n1M Chief, Standards Development\nOffice of Hazardous Materials Standards\n\n<<<PAGE 3>>>\n\n•.\nGOLDFARB, STURMAN & AVERBACH La Valle\nA PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS\nZANE S. AVERBACH*\nSTEVEN. FELDMAN*\nNINETBENTH FLOOR\nMARK J. PHILLIPS*O\n15760 VENTURA BOULEVAR\n§172.312\nMARTIN B. SNYDER\nCYNTHIAL. RUBIN*\nENCINO, CALIFORNIA 91436-301\nLES J. WOLIN\n(818) 990-4414\nnarcino\nALEX P. WU\nFAX: (818) 905-7173\n(323) 872-2204\nemail: gsa@gsalaw.com\n* A Professional Corporation\nCertified Specialist in Estate\nPlanning Trust & Probate Law\nAUTHOR'S EMAIL ADDRESS\nsfeldman@gsalaw.com\nNovember 30, 2000\nVIA U.S. EXPRESS MAIL\nAIRBILL NO. EL660277101 US\nEdward Mazzullo, Director\nOffice of Hazardous Materials Standards\nUnited States Department of Transportation\nResearch and Special Programs\nAdministration DHM-10\n400 7 Street, S.W.\nWashington, D.C. 20590-0001\n•\nRe: Hasa's Request for Hazardous Materials Regulation Interpretation\nDear Mazzullo:\nPlease be advised that this office represents Hasa, Inc, whose address is 23119 Drayton\nStreet, Santa Clarita, California 91350.\nBy this letter, on behalf of Hasa, this office is asking for a hazardous materials regulation\ninterpretations as follows:\nI\nREQUESTS:\n1.\nDoes the transportation of Hasa's packaging of DOT approved returnable one gallon\npolyethylene deposit containers ofliquid hydrochloric acid placed within open-topped\nDOT approved polyethylene crates constitute an \"overpack,\" or \"combination\npackaging\" as defined by Title 49 Code of Federal Regulations' Section 171.8?\nIf you find that Hasa's transportation of liquid hydrochloric acid in one gallon\npolyethylene containers placed within open-topped polyethylene crates is an\nAll future references shall be to the appropriate section of the Code of Federal\nRegulations\nX::8053910632677. WPD\n\n<<<PAGE 4>>>\n\nGOLDFARB, STURMAN & AVERBACH\nLAW OFFICES\nA PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS\nEdward Mazzullo, Director\nOffice of Hazardous Materials Standards\nUnited States Department of Transportation\nNovember 30, 2000\nPage 2\n\"overpack,\" is the transportation of that packaging not subject to Section 172.312\nas that section applies only to \"combination packaging?\"\n3.\nIrrespective of the above, does the DOT-E6614 exemption for Hasa also provide an\nexemption for the provisions of Sections 172.312(a)(2) and 172.312(b)?\nII\nCONTEXT\nEarlier this year, a trailer hauling open-topped crates of Hasa's hydrochloric acid was\ninspected at a local truck scale. An inspector made a determination that the crate containing the one\ngallon containers of Hasa's hydrochloric acid was in violation of Sections 172.312(a)(2) and\n172.312(b) as the crates do not contain markings indicating an upward orientation of the crate on\ntheir two opposite vertical sides.\nThe matter has been referred to the local District Attorney for possible prosecution.\nPACKAGING AND PRODUCT DESCRIPTION\nHasa is a re-packager of hydrochloric acid, UN 1789. The returnable, deposit paid product\npackaging is sold as an aqueous solution containing 31.4% hydrochloric acid by weight. The product\nis a corrosive liquid and is shipped in one gallon polyethylene bottles that are placed in DOT approved\nopen topped, solid walled polyethylene crates. The product is shipped in Hasa trucks pursuant to\nDOT exemption, DOT-E6614. A copy of the current DOT-E6614 exemption is attached as Exhibit\n1, for ease of reference\nThe polyethylene crate is marked \"DOT - E6614\" and each DOT approved polyethylene\nbottle is marked in accordance with the requirements of the DOT-E6614 exemption.\nEach polyethylene crate contains four DOT approved polyethylene bottles. As indicated, the\ncrates are open topped.\n. Each bottle fits snugly inside each crate with the tapered end of each bottle\nX: 180539\\0632677.WPD\n\n<<<PAGE 5>>>\n\nLAW OFFICES\nGOLDFARB, STURMAN & AVERBACH\nA PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS\nEdward Mazzullo, Director\nOffice of Hazardous Materials Standards\nUnited States Department of Transportation\nNovember 30, 2000\nPage 3\noriented towards the top of each crate. When shipped, each crate is stacked, one on top of the other,\nat the appropriate height with each crate interlocking with the one immediately below. A filled bottle\nwould not be placed upside down as that would be an obvious error in proper orientation, nor would\nany of the crates be stacked in anything but in an upward direction, as the crates would not interlock,\nunless stacked in the proper upward orientation.\nThe crates are then placed on wooden pallets. The crates are shrink-wrapped and the load\ntrailer.\nsecured in the trailers with chocks or other devices preventing movement during transportation of the\nHasa also repackages and transports one gallon no-deposit, no-return, containers of\npolyethylene bottles containing hydrochloric acid. These no-deposit, no-return containers are\npackaged in rectangular cardboard boxes, either two bottles to a box, or four bottles to a box. Each\nbox is a rectangle and symmetrical from top to bottom.\nUnlike the crate, as the top of the box is the same as the bottom, (even though the product\nupward package orientation. Arrows are thus displayed on two opposite vertical sides of each box\nlabeling on the outside packaging would indicate proper orientation), arrows indicate the proper\nof the no-deposit, no-return packaging.\nAttached hereto, referenced as Exhibits 2, 3 and 4, please find examples of the returnable or\ndeposit paid Hasa hydrochloric acid polyethylene crates and bottles.\nExhibit 2 depicts the interlocking nature of the crates.\nExhibit 3 is a top and side view of the crate and bottles.\nExhibit 4 depicts the interlocking stacked, and shrink wrap crates.\nExhibit 5, depicts the no-deposit, no-return, packaging with arrows showing the proper\norientation of each box.\nHasa has in stock approximately 300,000 interlocking polyethylene crates and approximately\n2 million deposit, returnable, polyethylene bottles used for hydrochloric acid.\nX:1805391063U2677. WPD\n\n<<<PAGE 6>>>\n\n•\nGOLDFARB, STURMAN & AVERBACH\nLAW OFFICES\nA PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS\nEdward Mazzullo, Director\nOffice of Hazardous Materials Standards\nUnited States Department of Transportation\nNovember 30, 2000\nPage 4\nIV\nAPPLICABLE CFR SECTIONS\nSection 172.312 provides in pertinent part:\nExcept as provided in this section, each non-bulk combination\npackage having inner packaging containing liquid hazardous materials\nmust be:\n(1)\nPacked with closures upward, and\n(2) Legibly marked, with package orientation markings\nthat conform pictorially to the illustration shown in this paragraph, on\ntwo opposite vertical sides of the package with the arrows pointing in\nthe correct upright direction. Depicting a rectangular border around\n(6)\nArrows for purposes other than indicating proper package\norientation may not be displayed on a package containing a liquid\nhazardous material.\n(c) The requirement of paragraph (a) of this section do not apply\nto - -\n(5)\nA non-bulk package with hermetically-sealed inner\npackaings.\"\nSection 171.8 defines \"overpack\" as:\n\"Overpack, except as provide in subpart K of part 178 of this\nsubchapter, means an enclosure that is used by a single consignor to\nprovide protection or convenience in handling of a package or to\nconsolidate two or more packages. Overpack does not include a\ntransport vehicle, freight container, or aircraft unit load device.\nExamples of overpacks are one or more packages:\n(1) Placed or stacked onto a load board such as a pallet\nX: 18053910632677. WPD\n\n<<<PAGE 7>>>\n\n•\nGOLDFARB, STURMAN & AVERBACH\nLAW OFFICES\nA PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS\nEdward Mazzullo, Director\nOffice of Hazardous Materials Standards\nUnited States Department of Transportation\nNovember 30, 2000\nPage 5\nand secured by strapping, shrink wrapping, stretch wrapping, or other\nsuitable means; or\n(2)\nPlaced in a protective outer packaging such as a box\nor crate.\"\nSection 171.8 defines \"combination packaging\" as:\n\"Combination packaging means a combination of packaging, for\nin a non-bulk outer packaging. It does not include a composite\ntransport purposes, consisting of one or more inner packaging secured\nHasa contends that the polyethylene crate and bottles are packaged as an \"overpack,\" and\ntherefore, no arrows are required on the two opposite vertical sides of the crate.\nA careful reading of the definition of \"overpack\" more accurately describes the Hasa\npackaging of the deposit, returnable packaging.\nHasa transports its deposit, returnable hydrochloric acid bottles in a returnable, deposit paid\n\"crate.\" The solid-walled polyethylene crate is a \"protective enclosure\" and the interlocked crates\nare stacked on \"pallets\" and then shrink-wrapped\nEach solid-walled polyethylene Hasa crate constitutes an outer packaging or \"enclosure\"\nwhich is a \"protective\" outer packaging as the crate is designed to provide secondary containment\nif a bottle should rupture and its contents leak.\nThe solid-walls of the crate render the packaging more of an \"enclosure,\" as the term is used\nin the definition of \"overpack,\" than a form of \"combination packaging.\"\nSection 171.8 specifically states that examples of \"overpack\" packaging include products\nsecured by shrink wrapping or stretch wrapping and placed in a \"crate\" that provides an enclosure\nas a protective outer packaging.\nX: 180539\\063U2677.WPD\n\n<<<PAGE 8>>>\n\nGOLDFARB, STURMAN & AVERBACH\nLAW OFFICES\nA PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS\nEdward Mazzullo, Director\nOffice of Hazardous Materials Standards\nUnited States Department of Transportation\nNovember 30, 2000\nPage 6\nThe definition of \"combination packaging\" is much more general in nature as there is no\nmention of stretch or shrink wrapping, nor does the definition mention crates or pallets. The\ndefinition of \"combination packaging\" does not include any reference to an \"enclosure\" or\n\"protective\" outer packaging, as does the definition for \"overpack.\" (Section 171.8)\nsection 7(c) that arrows must be used on the \"outer crate,\" but only that each crate must be marked\nFurther, the DOT- E66614 exemption by which this product is shipped, does not specify in\nDOT-E6614.\" Hasa has fully complied with DOT-G6614 marking requirements.\nThere is little risk that a filled bottle would be placed upside down in the crate as the upward\norientation of the tapered bottle is clear. Similarly, there is little risk that the crate would be\noransported upside down as each crate interlocks on the top of the other, and is then stretch wrapped\nNonetheless, if it is determined that the packaging is \"combination packaging,\" then the\nregulations require arrows on two opposite vertical sides of the crate unless the threaded cap of the\nbottle is hermetically-sealed, so that gas or vapor cannot enter or escape.?\nFor the reasons herein set forth, Hasa respectfully submits that the correct findings are as\nfollows:\nThe returnable one gallon polyethylene containers of Hasa hydrochloric acid,\nprace in e poles, ens ipe tope, so i paled prethis packagings\nDOT approved.\n2.)\nTherefore, the Hasa packaging of returnable one gallon containers of\nhydrochloric acid in DOT approved open topped, solid walled crates is not\nsubject to the provisions of Section 172.312.\nProvided, however, if Hasa's packaging is deemed to be \"combination\npackaging,\" it is respectfully requested you should find that such packaging\nHasa believes that the screw caps used on the hydrochloric acid bottles do\nhermetically-seal their contents.\nX:(805391063U2677.WPD\n\n<<<PAGE 9>>>\n\nLAW OFFICES\nGOLDFARB, STURMAN & AVERBACH\nA PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS\nEdward Mazzullo, Director\nOffice of Hazardous Materials Standards\nUnited States Department of Transportation\nNovember 30, 2000\nPage 7\nwould not be subject to Section 172.312 if the screw cap hermetically-seals\nthe bottle so that no gas can enter or escape.\n4)\nAlso, alternatively, you should find that the DOT-E6614 exemption exempts\nthe returnable bottles and crates from the provisions of Sections 172.312(a)\nand 172.312(b).\nIf further information or documentation is needed, please contact the undersigned at your\nearliest convenience.\nThank you for your prompt attention to this matter.\nRespectfully submitted,\nGOLDFARB, STURMAN & AVERBACH\nBy:\nSLF jae\nSteven L. Feldman\nEnclosure(s)\nX: 8053910632677.WPD","truncated":false,"body_characters":14149}