{"operation":"document","citation":"13-0070","title":"Safeway, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2013-07-25","effective_on":null,"summary":"13-0070 response to Safeway, Inc. concerning 173.301.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0070.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0070.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0070","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2013/130070.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\nMr. David Tobin\nSupply Operations Support\nSafeway, Inc.\n6441 C St.\nAnchorage, AK 99518\nJuly 25, 2013\nRef. No.: 13-0070\nDear Mr. Tobin:\nThis is in response to your April3, 2013 email requesting clarification ofthe requirements in the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180). In your email you state that your\ncompany ships products made by another company that are offered under DOT -SP 14887, and that\nthe outer packages are not marked to indicate the special permit number. You ask several questions\nwhich are paraphrased and answered as follows:\nQl. Is my company required to tender a copy ofDOT-SP 14887 when we ship these items?\nA 1. If you are a shipper of a package offered under a special permit you are required to tender a\ncopy of the special permit to the carrier. Paragraph 8, special provisions, of DOT -SP 14887 allows\na person who is not a holder of the special permit who receives a package covered by the special\npermit to reoffer it for transportation provided no modification or change is made to the package,\nand it is reoffered for transportation in conformance with the special permit and the HMR.\nParagraph 1 0, modal requirements, of DOT -SP 14887 requires a current copy of the special permit\nto be carried aboard each cargo vessel, aircraft, or motor vehicle used to transport packages covered\nby the special permit.\nQ2. Is the original manufacturer of the cans authorized in DOT -SP 14887 required to mark the\nouter packaging with the special permit number?\nA2. When offering a package containing aerosol cans manufactured under DOT-SP 14887 the\noriginal manufacturer is required to mark the outside of the package used to contain the cans.\nSection 172.301 (c) requires the outside of each package authorized by a special permit to be durably\nmarked \"DOT -SP\" followed by the special permit number assigned. The special permit in question\ndoes not waive this requirement.\nztltal ·\nDelmer Billings ~\nSenior Regulatory Advisor\nStandards and Rulemaking Division\n\n<<<PAGE 2>>>\n\nDrakeford, Carolyn {PHMSA)\nFrom:\nSent:\nTo:\nSubject:\nAttachments:\nINFOCNTR (PHMSA)\nThursday, April 04, 2013 1:40 PM\nDrakeford, Carolyn (PHMSA)\nFW: Question regarding SP14887 and 172.301(c)\nSP14887 _2011081001.pdf; SP15793_2013010939.pdf\nHi Carolyn,\nThis caller would like their letter submitted a letter of interpretation.\nThanks,\nVictoria\nFrom: David Tobin [mailto:David.Tobin@safeway.com]\nSent: Wednesday, April 03, 2013 7:29 PM\nTo: INFOCNTR (PHMSA)\nCc: David Tobin\nSubject: Question regarding SP14887 and 172.301(c)\nHello,\nAm looking for an interpretation regarding 172.301(c); could you please respond back that you have received this request;\nthank you.\nAt the end of last year we became aware that SC Johnson was shipping aerosol Glade products with the cans marked DOT\nSP-14487; however, the cases are not marked.\nWhen I called Special Permits and spoke with Kenny Herzog he did not see where the permit exempted 172.301(c). In\nemail correspondence with SC Johnson, Georgia Barr, Trade Compliance, of SC Johnson, emailed me that in a phone\nconversation Mick Nicks of PHMSA Special Permits informed them that they need not print the SP number on the case.\nI've been back and forth with Special Permits but have been unable so far to reach a definitive conclusion. Yesterday Stacy\nGray of Special Permits called me, and suggested I send this in email to you.\nAs the permits calls out that a current copy of the permit must be carried aboard various modes of transport, without the\ncase being marked, we aren't aware a copy needs to be included.\nTherefore we're asking for a letter of interpretation that states we are not required to tender a copy of the permit when\nwe ship these items. If not, then we'd request the SC Johnson mark their cases so we know. My understanding is their\napproval not to print is only via a phone call; am unaware if they've obtained a letter of interpretation allowing this.\nI trust you can appreciate our predicament that it appears a permit exists which requires us to do something, yet the item\nin question seemingly does not need to give us this information to act upon.\nIf it helps, am copying part of the email with Georgia below, and attaching SP-14887, as well as SP-15793 (15793 an\nexample of where Section 4 in the SP explicitly waives 172.301(c)).\nThank you,\nDavid Tobin\n1\n\n<<<PAGE 3>>>\n\nSafeway, Inc.\n907-339-7002\nEmail correspondence with SC Johnson:\nThank you Georgia,\nIt does help, and will be interesting to learn more from Kenny and Mike's discussion. We agree the one \"package\" is the\ncontainer (aerosol can). However, within the permit, section 8.c calls out \"Each container ... and shipped in a strong\noutside packagings.\" This takes us to 171.8 for the definition, where we see \"Package or Outside Package\" and from there\nto 172.301(c) where we see \" ... the outside of each package authorized by a special permit must be plainly and durably\nmarked \"DOT-SP\" followed by the special permit number assigned.\" Thus the 'package' is in an 'outside package' and the\n'outside package' must be marked.\nAs you mention, they could have explicitly stated the outside case be marked, but by omission, that does not negate\n172.301(c) which would require a Letter of Interpretation. And am curious, if the purpose is to alert users/offerors/others,\nwhy you would not want it on the case? If the purpose is to alert us, then why would it not be visible on the case:\nThe purpose of the SP is not to allow for some fundamentally different way of over packing, or provide outer packaging\nfor, a shipment of a hazmat. Thus, the functionality of listing the SP number (on the aerosol can) is to alert\nusers/offerors/others that this package has been constructed differently.\nEspecially since section 10 of the permit 10 states \"A current copy of this special permit must be carried aboard each\ncargo vessel, aircraft, or motor vehicle used to transport packages covered by this special permit.\" As we are required to\nprovide current copy of this permit we need to know which items have this permit, hence the value, and appeared\nrequirement, that this knowledge be discernible by viewing the outside package.\nThank you,\nDavid\n...\n:.~~=-J',l::..:,;', ·:· . .::, ~··>:r.;:·..:;~:·:-:-::.\n~~~:~.~ ~r~~ ~· ~r~~~~·~;r:\n:>~<:·L··i.:. ::-;·1·':: :.Ill.~~';>.:.~:: r:·..:.,:.::\n171.8\n2\n\n<<<PAGE 4>>>\n\nPackage or Outside Package means a packaging plus its contents. For radioactive materials, see§ 173.403 of this\nsubchapter.\nPackaging means a receptacle and any other components or materials necessary for the receptacle to perform its\ncontainment function in conformance with the minimum packing requirements of this subchapter. For radioactive\nmaterials packaging, see § 173.403 ofthis subchapter.\n172.301{c)\nSpecial permit packagings. Except as provided in § 173.23 of this subchapter, the outside of each package authorized by a\nspecial permit must be plainly and durably marked \"DOT-SP\" followed by the special permit number assigned. Packages\nauthorized by an exemption issued prior to October 1, 2007, may be plainly and durably marked \"DOT-E\" in lieu of \"DOT-\nSP\" followed by the number assigned as specified in the most recent version of that exemption.\nFrom: Barr, Georgia [mailto:GBarr@SO.COM]\nSent: Friday, January 18, 2013 10:15 AM\nTo: David Tobin\nCc: Gordon, Rob G.; Santos, Kimberly A.; Hall, Joseph L.; Wiley Jr, Clayton L.; Ceschin, Ann P.\nSubject: RE: SC Johnson Special permit\nDavid,\nMike Nicks is the PHSMA Special Permits Officer that advised us of the below interpretation. Kenny Herzog is out of the\noffice today.\nMike is in agreement with our conclusion.\nMike noted that pursuant to the definitions under 171.8, the \"package\" authorized in this case is the \"container\" (the\naerosol can) plus the hazmat. He further stated that if PHMSA, through the SP, wanted the outside packaging to be\nmarked with the SP number, then the agency could have expressly required this with clear language to this effect. For\nexample, PHMSA could have stated in the SP that the container and the outside packaging must be marked with the SP\nnumber.\nIn addition he added that it is important to note that the purpose of the SP is to authorize a specific construction of a\ncontainer or package- the aerosol can- that deviates from the HMR. The purpose of the SP is not to allow for some\nfundamentally different way of over packing, or provide outer packaging for, a shipment of a hazmat. Thus, the\nfunctionality of listing the SP number (on the aerosol can) is to alert users/offerors/others that this package has been\nconstructed differently.\nHope this helps!\nGeorgia Barr\nTrade Compliance\nFrom: David Tobin [mailto:David.Tobin@safeway.com]\nSent: Friday, January 18, 2013 11:13 AM\nTo: Barr, Georgia\nCc: Gordon, Rob G.; Santos, Kimberly A.; Hall, Joseph L.; Wiley Jr, Clayton L.; Ceschin, Ann P.\nSubject: RE: SC Johnson Special permit\nThank you Georgia,\n3\n\n<<<PAGE 5>>>\n\nHowever the concern is the cases are not marked with DOT-SP 14887 per the regs. SC Johnson has taken a position that\nthis is not required, based on a phone call with PHMSA. However when we contacted PHMSA they did not come to that\nsame conclusion. And without a Letter of Interpretation stating an exception exists, we would require the cases be\nmarked with the SP number for us to be in compliance while shipping them.\nIf SC Johnson can provide the name at PHMSA with whom they had their conversation, Kenny Herzog at PHMSA with\nwhom I spoke would be willing to talk with them so that we can resolve this difference.\nThank you,\nDavid\nFrom: Barr, Georgia [mailto:GBarr@SO.COM]\nSent: Friday, January 18, 2013 8:00 AM\nTo: David Tobin\nCc: Gordon, Rob G.; Santos, Kimberly A.; Hall, Joseph L.; Wiley Jr, Clayton L.; Barr, Georgia; Ceschin, Ann P.\nSubject: SC Johnson Special permit\nImportance: High\nDavid,\nDear David,\nIn response to your inquiry regarding there-offer requirements for our special permit SP 14887, we will provide you the\nlist of codes you purchase from SC Johnson that are regulated under this special permit.\nI believe you mentioned you have a copy of the special permit but if needed please let me know or it can be found on the\nPHSMA website.\nThank you,\nGeorgia Barr\nnEmail Firewalln made the following annotations.\nWarning: All e-mail sent to this address will be received by the corporate e-mail system, and is subject to archival\nand review by someone other than the recipient. This e-mail may contain proprietary information and is intended\nonly for the use of the intended recipient(s). If the reader of this message is not the intended recipient(s), you are\nnotified that you have received this message in error and that any review, dissemination, distribution or copying\nof this message is strictly prohibited. If you have received this message in error, please notify the sender\nimmediately.\n=====~========================================================================\n4","truncated":false,"body_characters":11070}