{"operation":"document","citation":"13-0085","title":"UPS — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2013-07-09","effective_on":null,"summary":"13-0085 response to UPS concerning 171.15.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0085.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0085.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0085","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2013/130085.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\nJUL 0 9 2013\nMr. SamuelS. Elkind\nCorporate Regulated Goods Manager\nUPS\n55 Glenlake Parkway, NE\nAtlanta, GA 30328-3474\nRef. No. 13-0085\nDear Mr. Elkind:\nThis responds to your April 18, 2013 letter seeking clarification of immediate notification\nrequirements in the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180), when\n§ 171.15(b)(6) specifies one must immediately notify the National Response Center (NRC) of\nan incident during transpmiation by aircraft that occurred as a direct result of a battery or\nbattery-powered device. Specifically you ask what circumstances would trigger the requirement\nthat you immediately notify the NRC of such an incident. Your questions are paraphrased and\nanswered below.\nQ 1. Does the phrase \"during transportation by aircraft\" in § 171.15(b )( 6) mean that the\nonly incidents that must be immediately reported are those when the battery or battery-\npowered device has been loaded on an aircraft and the incident occurred on the aircraft\nduring transportation?\nAl. No. Section 171.1( c) states that transportation of a hazardous material in\ncommerce begins when a carrier takes physical possession of the hazardous material for\nthe purpose of transporting it and continues until the package containing the hazardous\nmaterial is delivered to the destination ... \" Section 171.15(b)(6) specifies that a\ntelephone report is required whenever any of the following occurs during the course of\ntransportation in commerce (including loading, unloading, and temporary storage):\nduring transportation by aircraft, a fire, violent rupture, explosion or dangerous\nevolution of heat ( i.e. , an amount of heat sufficient to be dangerous to packaging or\npersonal safety to include charring of packaging, melting of packaging, scorching of\npackaging, or other evidence) occurs as a direct result of a battery or battery-powered\ndevice. As further evidence to the intent of§ 171.15(b )( 6), the immediate notification\nrequirement for batteries or battery-powered devices was added to the HMR 1 in response\nto incidents that occurred as a direct result of a battery or battery-powered device either\non board an aircraft in cargo, checked, or in carry-on baggage, or in ground transport\nfacilities associated with air transportation. Accordingly, the phrase \"during\n1 See Docket Nos. PHMSA-2007-0065 (HM-2240) and PHMSA-2008-0005 (HM-2151)).\n\n<<<PAGE 2>>>\n\ntransportation by aircraft\" in § 171.15(b )( 6) includes incidents that occur in the course of\nperforming pre-transportation functions for air shipments.\nQ2. If there is no outward evidence that a dangerous evolution ofheat has occurred,\nsuch as charring, melting or scorching, but the battery or battery-powered device\nrequires attention, concern, or action on the part of the carrier, such as it is warm to the\ntouch or is vibrating, must a carrier comply with the requirements of § 171.15 (b)( 6)?\nA2. No, unless another condition set forth in § 171.15(b) has occurred, you are not\nrequired to immediately notify the NRC ifthere is no evidence that a battery or battery-\npowered device caused a fire, violent rupture, explosion or dangerous evolution of heat\nand there is no evidence of amount of heat sufficient to be dangerous to packaging or\npersonal safety.\nI hope this answers your inquiry. If you need additional assistance, please contact this office at\n202-366-8553.\nSincerely,\nRobert Benedict\nChief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\n55 Glenlake Parkway, NE\nAtlanta, GA 30328-3474\nApril 18, 2013\nMr. Charles Betts\nDirector, Standards and Rulemaking\nPipeline and Hazardous Materials Safety Administration\nU.S. Department of Transportation\n1200 New Jersey Avenue, SE\nAttn: PHH-10, East Building\nWashington, DC 20590\nRequest for Interpretation- 49 CFR 171.15(b)(6)\nDear Mr. Betts:\nOn behalf of UPS, I seek a clarification of certain battery-related conditions that trigger a\nrequirement for telephonic or electronic notification of the National Response Center. These\nconditions are described in 49 CFR 171.15(b )(6), as follows:\nDuring transportation by aircraft, a fire, violent rupture, explosion or dangerous evolution of heat\n(i.e., an amount of heat sufficient to be dangerous to packaging or personal safety to include\ncharring of packaging, melting of packaging, scorching of packaging, or other evidence) occurs as\na direct result of a battery or battery-powered device.\nUPS seeks confirmation of its interpretation of the regulation: that notification to the National\nResponse Center is only required when all of the following elements are met with respect to a\nshipment (assuming the absence of any other threshold condition contained in§ 171.15):\n• The use of the phrase \"[ d]uring transportation by aircraft\" means the shipment in\nquestion must have been loaded onto an aircraft before detection of the incident (i.e., fire,\nviolent rupture, explosion or dangerous evolution of heat) and the evidence must indicate\nthat the incident occurred while the shipment was aboard the aircraft engaged in active\ntransportation. In other words, an incident that occurs while a package is being handled\nprior to its being loaded aboard an aircraft does not meet the \"during transportation by\naircraft\" element of§ 171.15(b )(6) for purposes of reporting the incident to the National\nResponse Center. Similarly, an incident that occurs in ground handling or ground\ntransportation subsequent to flight would not require a report to the National Response\nCenter under § 171.15(b )( 6).\n\n<<<PAGE 4>>>\n\n• Because of the use of the phrase \"other evidence\" in the parenthetical summary of\nconditions requiring a report, in order for the carrier to be compelled solely by such other\nevidence (i.e., in the absence of charring, melting, or scorching) to make a report, the\ncarrier, using its subjective judgment, must determine that the battery or device has\ngenerated heat on a scale similar to heat that would scorch, char, or melt the packaging or\ncomponents of the shipment~ outcomes which, on their face, reasonably provide\nevidence of the presence of a \"dangerous evolution of heat.\" In other words, in the\nabsence of objective evidence that such high heat was present (such that could cause\nconditions such as scorching, charring or melting of packaging or shipment components),\nan enforcement action cannot properly be brought against a carrier for failure to make a\nnotification of the National Response Center. For example, considering a package that is\nfound simply to be vibrating or even \"warm to the touch\" without any additional indicia\nof a \"dangerous evolution of heat\" during handling in ground operations due to activation\nof a battery operated device contained within ~ while such a package may require\nattention, concern and action on the part of a carrier, it does not, by the sole reason of the\nvibration or warmth, require a telephone notification to the National Response Center.\nUPS notes that during the rulemaking process that introduced this language into the Hazardous\nMaterials Regulations, PHMSA made significant efforts to avoid ambiguity that could result in\nmisunderstandings between carriers and enforcement personnel. 1 UPS believes that the phrasing\nof §171.15(b)(6) is consistent with its interpretation, as described above. However, recent\nexperience suggests that some U.S. DOT inspectors may hold contrary views. While UPS\nrecognizes the importance of transportation safety with respect to packages containing batteries,\nand seeks to minimize the risks posed by such shipments throughout its operations, UPS also\nrecognizes that unnecessary incident reporting to the National Response Center has the potential\nto divert critical resources from serious hazardous material incidents involving injuries or\nfatalities addressed by the bulk of §171.15. Accordingly, PHMSA's definitive guidance on these\nmatters will be greatly appreciated:\nSincerely,\nSamuel S. Elkind\nCorporate Regulated Goods Manager\n1 74 Fed. Reg. 2,200-2,270, Final Rule, Dockets HM215J and 224F, January 14, 2009. See especially page 2,204,\nin which PHMSA acknowledged concerns about ambiguous reporting standards and made specific efforts to reduce\nthe potential for such ambiguity.","truncated":false,"body_characters":8376}