{"operation":"document","citation":"03-0065","title":"Eliokem, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2003-06-23","effective_on":null,"summary":"03-0065 response to Eliokem, Inc. concerning 172.401.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0065.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0065.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0065","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2003/030065.pdf","body":"<<<PAGE 1>>>\n\n:\nU.S. Department\nof Transportation\n400 Seventh St., S.W.\nSpecial Programs\nResearch and\nWashington, D.C. 20590\nJUN 23 2003\nAdministration\nMr. Dennis McMahan\nSupply Chain and Logistic Manager\nReference No. 03-0065\nEliokem, Inc.\n1452 East Archwood, Suite 240\nAkron, OH 44306\nDear Mr. McMahan:\nThis is in response to your letter asking if a Class 9 label may remain on a package of styrenated\nphenol liquid when it is shipped in the United States (U.S.) or within a U.S.-designated port area\nprovided the shipping paper does not describe the material as a hazardous material and the\ndisclaimer \"Not subject to U.S. DOT regulation\" is marked on the package. You state the\nstyrenated phenol liquid meets the criteria for the Class 9 hazard class under the European\nAgreements concerning the International Carriage of Dangerous Goods by Road (ADR) and Rail\n(RID) regulations for transportation of hazardous materials by highway or rail in Europe, but\ndoes not meet the definition of any hazard class under the Hazardous Materials Regulations\n(HMR; 49 CFR Parts 171-180), or the International Maritime Dangerous Goods Code (IMDG\nCode) for transportation in the U.S. The material safety data sheet you provided states the\nmaterial may cause an adverse effect in an aquatic environment.\nThe HMR do not authorize labeling in accordance with the ADR/RID regulations. Section\n172.401(c) permits labeling in accordance with the IMDG Code, International Civil Aviation\nOrganization's Technical Instructions for the Safe Transport of Dangerous Goods by Air, or\nCanadian Transport of Dangerous Good Regulations only if a material is a hazardous material or\ndangerous good under any of these regulations. However, the IMDG Code does not include a\nprohibition consistent with § 172.401. As the IMDG Code does not specifically prohibit the use\nof labels authorized by ADR/RID, packages of the ADR aquatic environment material may be\nlabeled Class 9 and are acceptable for transportation within the U.S. We recommend ADR\nlabeled packages transported in the U.S. be limited to closed freight containers and transport\nvehicles to avoid potential frustration of the shipments. A statement such as \"non-DOT\nregulated\" or \"not subject to U.S. DOT regulation\" may appear on the product label for\nsubsequent transportation in the U.S.\nAlso, in a notice of proposed rulemaking published on December 3, 2002 (Docket No. RSPA-02-\n13658, HM-215E), we proposed adding Special Provision 146 to § 172.102 of the HMR. This\nspecial provision will permit materials that are designated as environmentally hazardous by the\nCompetent Authority of the country of origin, transit, or destination, but do not meet the\no be described as \"Environmentally hazardous substances, liquid or solid. n.o.s.\" The final rul\nlefinition of a hazardous substance or hazardous waste in § 171.8 or any other HMR hazard clas\nis under development.\n172401\n030065\n\n<<<PAGE 2>>>\n\nYou also asked us to clarify what is meant by the phrase \"final destination\" when the styrenated\nphenol liquid is imported into the U.S. under the IMDG Code, delivered to Eliokem's\ndistribution warehouse, and then further sold and shipped to customers. Specifically, you seek\nguidance for determining when a hazardous material has completed transportation and is no\nlonger subject to the HMR. \"Transportation,\" as defined in § 5102 of the Federal hazardous\nmaterials transportation law (49 U.S.C. 5101-5127), means the movement of property and\nloading, unloading, or storage incidental to the movement. A hazardous material's transportation\nends once a consignee takes physical delivery of the hazardous material from the carrier. After\ndelivery, storage of a hazardous material at a consignce's facility is not \"storage incidental to the\nmovement\" within the meaning of the Federal hazardous materials transportation law; thus, the\nHMR do not apply to such storage. Transportation in commerce begins again when the\nhazardous material is re-offered and accepted for transportation for delivery to another\nconsignee.\nI hope this satisfies your request.\nSincerely,\nHathe z rotthele\nHattie L. Mitchell, Chief\nRegulatory Review and Reinvention\nOffice of Hazardous Materials Standards\n\n<<<PAGE 3>>>\n\nINFOCNTR\nFrom:\nSent:\ndennis_mcmahan@eliokem.com\nSubject:\nTo:\nInfocntr, Infoentr <RSPA>\nTuesday, March 04, 2003 11:00 AM\nEdmonson\nInformation Center Comments/Questions\n37162\n176.2\nBelow is the result of your feedback form..\n(dennis_mcmahan@eliokem.com) on Tuesday, March 4,\nIt was submitted by\n03-0065\nEmail:\ndennis_mcmahan@eliokem.com\nLabelina\nName:\nDennis McMahan\n172.401\n4v... .\nCategory:\n171.1 - 171.21)\nGeneral Information, Regulations, and Definitions (Sections\n.....\nOrganization: Elioken Inc\nin !\nStreet: 1452 East Archwood Suite 240\nCity: Akron\nState: Ohio\nZip Code: 44306\nPhone: 330 734 1117\nFax: 330 734 1101\nComments: Would you please provide a written official response to the\nfollowing questions. Thank you\nof our U.S. Company (Elioken Inc.) produces a product that is regulated\nI would like clarification on an issue. Eliokem SAS, a French affiliate\nEurope.\nand labeled as a Class 9 Dangerous Goods per the ADR/RID regulations in\nEliokem Inc. imports this material from\nInited States. In the United States, this material is not subject to the\nErance for re-sale within the\nHMR's and is a non-regulated, non-hazardous material. The product is a\nstyrenated phenol liquid that has a Class 9 label in Europe under the\nWe would like clarification on the following three issues:\nlabels to remain on\nWould it be permissible for the ADR/RID Class 9 Dangerous Goods\nU.S. DOT regulation\" when shipped within the United States? We would not\n\"Not subject to\noffer shipping papers with this product when shipping in the United\nStates that would describe it as a hazardous material.\n(via an ocean vessel): Would it be permissible to apply a ADR/RID Class\nWhen exporting this material to France from the United States\nto U.S. DOT regulation\" for the U.S. inland portion of the\nwith the disclaimer \"Not\ntransport to the port, if this product is not regulated per IMDG or the\n\n<<<PAGE 4>>>\n\n: 3.\ndestination\" when discussing\nThe official definition/interpretation of the term \"final\nin accordance with the IMDG is unclear to\nshipment imported into the United States\nMaterial Standards response\nRef. No. 989-1050 to Browning Chemical Corp.\nIn the Office of Hazardous\nStates in accordance with the IMDG Code under $171.12 of the HMR's may\non August 10, 1998,\n\"a shipment imported into the United\nbe offered for transportation and transported in the United States to\nits final destination.\"\nwarehouse in the U.S. and then |\nIf the product is imported into Eliokem' s\nin the U.S.,\nis the\n\"final destination\" the customer facility or is it\nsold and shipped to our customer\nEliokem's distribution warehouse.\neach country in which we conduct business, we\nAs we make every effort to operate within\nlaws and regulation of\nand ruling regarding these questions prior\nto taking any action. We are\nawait your interpretation\ncurrently removing\nis imported and prior to re-shipping the product in the United States.\nthe Class\n9 Dangerous Goods labels once the product\nBest Regards,\nDennis McMahan\nEliokem Inc.\nSupply Chain\n& Logistic Manager","truncated":false,"body_characters":7249}