{"operation":"document","citation":"10-0251","title":"PBI Technology, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2012-05-07","effective_on":null,"summary":"10-0251 response to PBI Technology, Inc. concerning 171.1, 171.2, 173.22a.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0251.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0251.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0251","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2010/100251.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nMAY 0 7 2012\nMr. Paul Bess\nPresident\nPBI Technology, Inc.\nP.O. Box 58356\nWebster, TX 77598\nRef. No. 10-0251\nDear Mr. Bess:\nThis responds to your letter requesting clarification of the Hazardous Materials Regulations\n(HMR; 49 CFR Parts 171-180) applicable to hazardous materials transportation functions\nperformed by multiple parties. I apologize for the delay in responding and any\ninconvenience it may have caused. Your questions are paraphrased and answered as\nfollows:\nQl. Through a contractual agreement with a manufacturing facility, a vendor assumes all\nresponsibilities for regulated hazardous materials functions. As such, the vendor fills\nand delivers Intermediate Bulk Containers (IBCs), portable tanks, and cylinders, it\neither owns or leases, to a manufacturing facility using its own vehicles and\npersonnel. Vendor personnel unload the packages and connect them to process\nequipment where they are consumed by the manufacturing facility. When empty,\nvendor personnel return to pick up the packages containing residual hazardous\nmaterials and perform all pre-transportation and transportation functions. Under this\nscenario, is the vendor, the manufacturing facility, or both, responsible for\ncompliance with the HMR?\nAl. Based on your description, the vendor performs all offeror and carrier functions and\ntherefore is responsible for ensuring that the shipments conform to the requirements\nof the HMR. Specifically, an offeror is responsible for ensuring proper labeling and\nshipping papers under §§ 172.200, 172.204, and 172.400; and an offeror or carrier\n(when assigned the function) is responsible for markings and placards under\n§§ 172.300 and 172.500. Package manufacturers and those who perform\nrequalification functions are responsible for the compliance of packagings; however\nthe offeror must use and prepare the package correctly and ensure it is properly\nmaintained. (See §§ 173.22, 178.2(a)(2), 178.601, 178.801(b ), 180.3, and 180.205.)\nPlease note that if you perform any pre-transportation functions (as defined in\n§ 171.8) related to the residue shipment, including securing the closure on a package,\n\n<<<PAGE 2>>>\n\nQ2. A2. Q3. A3. Q4. preparing a shipping paper, providing emergency response information, or certifying\nthat a shipment is in proper condition for transportation in conformance with HMR\nrequirements, you are responsible for compliance with the HMR.\nUnder the same scenario in Ql, if vendor personnel perform all pre-transportation\nfunctions but instead used a commercial carrier to transport the packages away from\na manufacturing facility, is the answer the same?\nYes, the answer is the same. As specified in§ 171.2(a), each person who performs a\nfunction governed by the HMR must perform that function in accordance with the\nHMR. The fact that the carrier is commercial, private, or otherwise in this scenario\nis irrelevant.\nOccasionally, vendor personnel will deliver packages of hazardous and non-\nhazardous materials intended for permanent on-site storage once connected to\nprocess equipment. As needed, the packages are refilled by vendor personnel on-site\nwithout disconnecting from the process equipment. For United Nations (UN)\nstandard or Department of Transportation (DOT) specification packagings, is the\nvendor, the manufacturing facility, or both, responsible for compliance with the\nHMR (e.g., loading/unloading)?\nIn. the scenario you describe, the vendor is responsible for compliance with the HMR\nfor functions it performs (e.g., loading/unloading, attendance). Conversely, under\n§ 17l.l(d)(3), the storage of a package containing a hazardous material after its\ndelivery by a carrier to its destination is no longer subject to the requirements of the\nHMR. Further, any function (e.g., movement) performed exclusively within a\ncontiguous facility boundary by the consignee, where public access is restricted, is\nnot subject to the requirements of the HMR. However, please note that other\nregulations and standards of other Federal, state, and local agencies may apply. For\nexample, the Occupational Safety and Health Administration (OSHA) Regulations of\nthe U.S. Department of Labor, at 29 CFR 1910.110, require DOT specification\npressure vessels containing liquefied petroleum gas and used in the workplace to\nconform with the HMR.\nUnder § 171.2(g), no person may represent or offer a packaging as meeting the\nrequirements of the HMR unless the packaging is maintained, marked, and retested\nin accordance with the applicable requirements of the HMR when transported in\ncommerce. These requirements are applicable whether or not the packaging is used\nfor the transportation of a hazardous material. Therefore, if the UN standard or DOT\nspecification packaging used at the manufacturing facility is not maintained in\naccordance with the HMR, we recommend you securely cover any identifying marks\nor specification plates representing it as such.\nWhen applicable, who is responsible for providing or retaining copies of a special\npermit governing packagings, the vendor or the manufacturing facility?\n2\n\n<<<PAGE 3>>>\n\nA4. In the scenario you describe, the vendor is responsible. In general, the holder of a\nspecial permit is required, by the terms of the permit, to retain a copy of it.\nAdditionally, anyone acting under the special permit should have a copy in order to\nensure compliance with its terms, in accordance with §§ 171.2 and 173.22a(b ), and\nmay be required to retain a copy under the terms of the special permit. As specified\nin § 171.2, it is an offeror (shipper) responsibility to comply with all applicable\nrequirements of the HMR, including a special permit issued under the HMR. The\nofferor must ensure packagings used to transport hazardous materials are\nmanufactured, assembled, and marked in accordance with any applicable special\npermit. (§ 173.22(a)(2)(v).) The offeror is also required to provide a copy of the\nspecial permit to a carrier, when the permit contains requirements relevant to the\ncarrier. (§ 173.22a(c).)\nBased on your description, the vendor is acting as the offeror and carrier and is\ntherefore responsible for retaining and providing copies of relevant special permits.\nIf the manufacturing facility is not the holder of the special permit, does not perform\nany activities authorized under the special permit, and does not act as the offeror or\ncarrier of any shipments, then it is not responsible for retaining or providing copies\nof the permit.\nI trust this satisfies your inquiry. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n3\n\n<<<PAGE 4>>>\n\nPBI Technology, Inc.\nSieven6\n-Bt?f.g\n~ J1J,/\n~11!J·P.~\nA-pph ~lo,J(!j\n/0'/JZ 51\nNovember 23, 2010\nMr. Charles E. Betts\nDirector, Office of Hazardous Materials Standards\nU.S. DOT/PHMSA (PHH-10)\n1200 New Jersey Avenue, SE East Building, 2nd Floor\nWashington, DC 20590\nDear Mr. Betts,\nPlease clarify the requirements under the Hazardous Material Regulations in regards to the following scenario:\nA manufacturing facility contracts with multiple vendors to provide flammable liquids, corrosives, gases, and non-\nregulated materials in IBC's, portable tanks, and cylinders, all of which are owned or leased by the vendor. The\nvendor fills the packaging and delivers the packages to the manufacturing site (private carrier), using vendor\nemployees to transport, unload, and make connections to manufacturing facility process equipment. When the\nmaterials have been consumed and the packages are empty with only residue remaining, the vendor's employees\nload the packages onto transport equipment provided by the vendor. The vendor's employees generate the\nshipping papers to move the packages from the manufacturing site. No employees of the manufacturing facility\nperform any functions of a hazmat employee as defined in 49CFR § 171.8.\nQuestions:\n(1) Is the manufacturing facility responsible to ensure DOT compliance on the vendor owned IBC's, portable\ntanks, and cylinders delivered to and shipped from their site by the vendor's employees? For example, is\nthe manufacturing facility responsible to ensure that IBC's and portable tanks are within prescribed retest\nand inspection dates, are properly marked, labeled, and placarded, that special permit and exception\nmarkings are correct, or that shipping papers generated by the vendor meet the requirements of the HMR?\n(2) Instead of using vendor equipment (private carrier), occasionally the vendor contracts with a public carrier\nto transport packages containing hazardous materials to and from the manufacturing site. The vendor\nemployees continue to perform all hazmat employee functions. Is the manufacturing facility responsible to\nensure DOT compliance for pre-transportation or transportation functions?\n(3) In some instances, IBC's and portable tanks are filled with regulated and non-regulated mixtures/solutions\nand delivered to the manufacturing site, where they are connected to process equipment owned by the\nmanufacturing facility and used as permanent storage. As needed, the packages are refilled by the\nvendor's employees without disconnecting or removing from the manufacturing site. Is the manufacturing\nfacility responsible to ensure DOT compliance for any loading/unloading functions performed by the\nvendor's employees?\n(4) If IBC's, portable tanks, or cylinders are authorized by DOT special permits or exemptions, is the vendor\nrequired to provide copies of the special permits of exemptions or must copies be retained by the\nmanufacturing facility?\nYour assistance is greatly appreciated.\nBest regards,\nfPruJ ffieM\nPaul Bess","truncated":false,"body_characters":9815}