{"operation":"document","citation":"11-0027","title":"The Council on Safe Transportation of Hazardous Articles, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2011-04-11","effective_on":null,"summary":"11-0027 response to The Council on Safe Transportation of Hazardous Articles, Inc. concerning 173.22.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0027.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0027.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0027","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2011/110027.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration APR 1 12Dl1\n1 200 New Jersey Ave, SE\nWashington, D.C. 20590\nThomas W. Ferguson, DGSA\nTechnical Consultant\nThe Council on Safe Transportation\nof Hazardous Articles, Inc.\n7803 Hill House Court\nFairfax Station, V A 22039\nReference No. 11-0027\nDear Mr. Ferguson:\nThis is in response to your February 3, 2011 letter requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to closure instructions. You\npresented a transportation scenario and ask how these requirements apply to a company that does\nnot fill or close a package but only reoffers it for transportation? Your scenario is paraphrased\nand addressed below.\nIn your letter, you state a packaging manufacturer of a UN 4G fiberboard box with four inner\nplastic containers produces closure instructions for the packaging that clearly indicate the proper\nway to close each inner container (using the tops and seals provided), how to place each inner\ncontainer in the outer packaging (with cushioning), and how to seal the outer packaging (using\nthe tape provided). The manufacturer then sells and ships the packagings to Company A.\nCompany A fills the inner packagings with an authorized hazardous material for the packaging,\nproperly closes the inner and outer packagings, and subsequently ships the completed package to\nCompany B. Company B is a storage and reseller company. It does not open or alter the\npackage. Company B receives an order from Company C for the hazardous material and ships\nthe package to Company C for its eventual use.\nYou state it is your organization'S understanding that the closure notitication requirements\nprescribed in § 178.2(c) require the packaging manufacturer to prepare the closure instructions\nand provide them to Company A, the company that fills and closes the package, in either an\nelectronic fonnat or permanently printed or embossed on the packaging. You also state it is your\norganization'S understanding that Company A must retain a copy of closure instructions and\nmake them available for inspection for 365 days from the date the package is offered for\ntransportation, but that Company B is not required to do this because the package was never\nopened.\nYour understanding is correct. As specified in § 178.2(c)(i)(A), closure instruction notification\nis required to inform the user of a hazardous materials packaging of all the requirements the\npackaging does not meet at the time of transfer. A completed package that is properly closed\n\n<<<PAGE 2>>>\n\nmeets all the requirements contained in its closure instruction notification at the time it is offered\nfor transportation. The reuse provisions in § 173.28(a) require that all packagings and\nreceptacles used more than once be in such condition, including closure devices and cushioning\nmaterials, that they conform in all respects to the HMR. Therefore, provided the package is not\nopened and continues to meet its performance standard, the HMR do not require the person who\nreceived the package and is re-offering it for transportation to retain its closure instructions as\nprescribed in § 173.22(a)(4). In addition, please note that effective October 1,2010, the time\nperiod for retaining the closure instructions prescribed in § 173.22(a)(4) was revised to 12\nmonths for single or composite packagings and 24 months for combination packagings in\nresponse to an appeal to the February 2, 2010 final rule. This change was published in a second\nfinal rule issued under Docket No. HM-231 on September 30,2010 [75 FR 60333]. The\nappellant has since requested that we rescind this change and reinstate the 365 day retention\nrequirement. We will consider this change in a future rulemaking.\nI hope this satisfies your request.\nSincerely,\nrt/lb?V~\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n2\n\n<<<PAGE 3>>>\n\nCOUNCIL ON SAFE TRANSPORTATON\nOF HAZARDOUS ARTICLES, lNC.\nFebruary 3, 2011\nPresident\nRobert Heinrich\nNovartis Pharmaceuticals\nRobert Heinnch@no\\'artts com\nFirst Vice P ..csident\nDonald Dossow\nJohnsonDiverscy, Inc.\ndonald bossow@johnsondlversey com\nSecond Vice PresidentlTreasurer\nJohn D'Aloia\nMary Kay, Inc.\nJohn d'aIOla@mkcorpcom\nSecretary\nJeanne Zmich\ntabelmaster\nJEAN:'\\EZ@aic·netcom\nExecutive Committee Member\nRichard Lattimer\nEli Lilly and Company\nIt Lattimer@hlly com\nBoard of Directors\nLes Adolph\nAmerican AirHnes\nLes Adolph@aa.com\nJeanette DeGennaro\nThermo Fisher Scientific\nJeanettc,degennaro@therrnofishercom\nDavid Evans\nPurolalor Courier Ltd.\ndevans1@purolatorcom\nAmy fischesser\nSun Chemical Corporation\namy flschesser@na,sunchem com\nAlicia Gaines\nAbbot! Laboratories\nalicIa galnes@abbott com\nDave Madsen\nAuto1iv, Inc.\nDave Madsen@autoliv.com\nRich 1\\'1oskowitz\nAmerican Trucking Associations. Inc.\nrmoskowitz@truckmg org\nChristopher Palabrica, CPM, CHMM\nMays Chemical Co.\nchnsp@mayschem com\nDRn \\Viete\"\nTovota !\\fotor Sales, LISA, Inc.\n~ dan... wieten@toyo1a com\nGeneral Counsel\nRIchard Schweitzer. PLLC\nMagdy EI-Sibaie, PhD\nActing Associate Administrator, Hazardous Materials Safety\nPipeline and Hazardous Materials Safety Administration\nUS Department of Transportation\n1200 New Jersey Ave., SE\nEast Bldg. Second Floor\n(PH) Washington, DC 20590-0001\nDear Dr. EI-Sibaie:\nThe Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA)\nhereby submits a request for interpretation regarding the requirement to\nmaintain closure instructions identified in §178.2(c} and required to be\nmaintained by § 173.22(a)(4).\nCOSTHA is a not-for-profit organization representing manufacturers,\nshippers, distributors, carriers, freight forwarders, trainers, packaging\nmanufacturers and others associated with the hazardous materials\ntransportation industry. In addition to promoting regulatory compliance and\nsafety in hazardous materials transportation, COSTHA assists its members\nand the public in evaluating the practicality and efficacy of laws, rules and\nregulations for the safe transportation and distribution of hazardous\nmaterials.\n§173.22(a)(4} requires a person using DOT Specification or UN Standard\npackaging subject to the requirements of Part 178 to prepare and close the\npackaging in accordance with instructions provided by the packaging\nmanufacturer or subsequent distributor. In the Final Rule HM-231 issued\nFebruary 2,2010, PHMSA revised §173.22(a)(4) to require a shipper to\nmaintain package closure instructions for a minimum of 365 days after\noffering the package for transportation. However, in referencing a\n\"package\" in the discussion of \"packaging\" closure instructions, confusion\nhas been introduced as to whom is actually required to maintain the closure\ninstructions.\nIn the preamble at paragraph E, Packaging closure instructions, PHSMA\nstates \"In accordance with §178.2 (c) a packaging manufacturer and\nsubsequent distributors of the packaging must provide written instructions\nfor assembling and closing the packaging so that it will maintain its integrity\nduring transportation.\nThe Council on Safe Transportation of Hazardous Articles, Inc.\n7803 Hill House Court Fairfax Station, VA 22039 Phone: 703/451-4031 Fax: 703/451-4207\nmail@costha.com www.costha.com\n\n<<<PAGE 4>>>\n\nConsider the following scenario. A packaging manufacturer produces a 4G box with 4 inner\nplastic containers. The manufacturer produces closure instructions that clearly indicate the\nproper way to close each inner container (using the tops and seals provided), how to place each\ninner container in the outer packaging (with cushioning), and how to seal the outer package\n(using specified tape provided).\nThe manufacturer then sells and ships the packagings to Company A. Company A fills the\npackagings, properly closes the packagings, and subsequently ships the completed package\n(packagings and hazardous material contents) to Company B. Company B is a storage and\nreseller and does not open the package. Company B receives an order from Company C for\nthe hazardous material, and the completed package as prepared for shipment by Company A is\nshipped to Company C for eventual use.\nIt is clear §178.2(c) requires the packaging manufacturer to produce closure instructions and\nprovide them to Company A when selling or distributing packaging. The instructions may be\npaper or electronic, or permanently printed or embossed on the packaging. It is also clear from\nthe Preamble to HM-231 and per §173.22(a)(4) that Company A, who must fill and close the\npackaging in accordance with the closure instructions, must retain a copy of the closure\ninstructions and have them available for inspection for a period of 365 days from the date the\ncompleted package is offered for transportation.\nHowever, what is the applicability of §173.22(a)(4) to Company B who does not fill or close the\npackage, but only reoffers the package for transport? Company B will certify on the shipping\npaper that the package was prepared in accordance with the applicable requirements in 49\nCFR. But since the package was never opened, the closure instructions were never needed,\nutilized or provided to them by Company B.\nCOSTHA contends that the §178.2(c) notification requirements apply to the manufacturer of the\npackaging and each subsequent distributor of that packaging. §178.2(c) does not provide any\nsuch applicability to the secondary shipping of a package that was properly closed by the\noriginal offeror and not reopened and reclosed by Company B. Phrased another way, the\nclosure instruction maintenance requirements of §173.22(a)(4) are applicable to a shipper who\nperforms the act of closing the packaging prior to it being offered for transportation, and would\nalso include shippers who open and reclose those packagings (for example, packaging covered\nby §173.28). We believe §173.22(a)(4) is not applicable to a shipper who subsequently reoffers\na package that has not been opened and reclosed since this shipper did not actually perform\nthe closure function.\nAs this situation has immediate and significant enforcement liability, we would appreciate a\ntimely response.\nSincerely,\nThomas W. Ferguson, DGSA\nTechnical Consultant\nThe Council on Safe Transportation of Hazardous Articles, Inc.\n7803 Hill House Court, Fairfax Station, VA 22039 703/451-4031 FAX: 703/451-4207\nmail@costha.com www.costha.com","truncated":false,"body_characters":10359}