{"operation":"document","citation":"17-0046","title":"TT Club — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2017-11-14","effective_on":null,"summary":"17-0046 response to TT Club concerning 171.23, 173.244, 178.273, 178.274.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-17-0046.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-17-0046.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-17-0046","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/56171/170046a.pdf","body":"<<<PAGE 1>>>\n\nMichael Yarwood\nClaims Executive\nTT Club\n90 Fenchurch Street\nLondon EC3M 4ST\nReference No. 17-0046\nDear Mr. Yarwood:\nThis letter is in response to your April 3, 2017, email requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to the transport of\nphosphorous oxychloride and phosphorous trichloride in United Nations (UN) portable tanks.\nThe hazardous materials are transported from Europe to the United States in UN portable\ntanks in accordance with the International Maritime Dangerous Goods Code. Specifically,\nyou ask whether these UN portable tanks must be marked with a \"U\" stamp.\nA UN portable tank used to import \"UN1810, Phosphorus oxychloride, 6.1, (8), PG I, Toxic\nInhalation Hazard Zone B\" and \"UN1809, Phosphorus trichloride, 6.1, (8), PG I, Toxic\nInhalation Hazard Zone B\" into the United States must be designed and constructed in\naccordance with the requirements in Section VIII, Division I of the American Society of\nMechanical Engineers (ASME) Code. Additionally, portable tanks must have an ASME\ncertification and a \"U\" stamp when used for Hazard Zone A or B toxic by inhalation liquids\nas required by § 178.274(b)(1). The U.S. Department of Transportation requires Zone A or B\ntoxic by inhalation liquids to be transported in ASME Code \"U\" stamped portable tanks\nregardless of what other regulatory standards may allow. Other design codes may be used if\napproved by the Associate Administrator.\nIn your email, you reference a letter of interpretation previously issued under Reference No.\n13-0151 that authorizes in the United States the use of a UN standard packaging, including a\nUN portable tank, manufactured outside of the United States in conformance with national or\ninternational regulations based on the UN Recommendations on the Transport of Dangerous\nGoods. This response remains correct for hazardous materials that are not toxic by inhalation.\nHowever, the response in 13-0151 is not applicable to materials toxic by inhalation or the\n\n<<<PAGE 2>>>\n\nDuane Pfund\nInternational Standards Coordinator\nStandards and Rulemaking Division\n2\n\n<<<PAGE 3>>>\n\nHello,\nCan one of you please log this request for an interp in. It's an international letter, so it can be assigned to an\ninternational staff. The folder will need all three attachments.\nThanks\nSteve\nFrom: Michael Yarwood [mailto:Michael.Yarwood@thomasmiller.com]\nSent: Monday, April 03, 2017 7:13 AM\nTo: Webb, Steven (PHMSA) <steven.webb@dot.gov>\nSubject: FW: US DOT CFR49 Query\nDear Steven,\nApologies for reaching out unannounced, a colleague kindly provided me with your contact details.\nWe have a Member who has posed a query to the Club in relation to the \"U\" stamp where loaded tank containers are\ntransported from US ports through into the hinterland for final delivery by road. The tanks were loaded and shipped\nfrom Germany in Europe.\nOur Member in this instance does not own the tanks themselves, they are shipper owned. The tanks we understand do\nnot have a \"U\" stamp and our Members' customer is requesting that the tanks are transported to destination in the US\nhinterland by road.\nOur Member has highlighted the need for the \"U\" stamp to be present for such journeys and essentially refused to move\nthe tanks to destination at this time.\nBoth our Member and their customer have in the last week sought separate expert advice on the matter at hand and\nboth have come back conflicting with one another, which isn't obviously helping to resolve the current dispute.\nI wonder if you would possibly be able to look over the two sets of advice as attached and provide a definitive position\nas to whether or not the loaded tanks can move to destination without the presence of the \"U\" Stamp.\nThank you in advance.\nBest regards,\n1\n\n<<<PAGE 4>>>\n\nTT CLUB\nestablished expertise\nFind us on Linkedin Twitter\nT Club is managed by Thomas Mille\nO renchurch st London EC3M 45\nTT Club is a trading name of Through Transport Mutual Insurance Association Ltd incorporated in Bermuda & TT Club Mutual Insurance Ltd registered\nin England No. 2657093. Through Transport Mutual Services (UK) Ltd is the appointed representative of TT Club, which is authorised by the Prudential\nRegulation Authority and regulated by the Financial Conduct Authority and Prudential Regulation Authority. Through Transport Mutual Services (UK) Ltd\nis a Thomas Miller company, registered in England No. 2979794.\nintended recipient, ay und intersed ise, disco ire, copying istanior disseminations serie pree realer ear or to cation W\nin error, please notify the sender immediately by telephoning +44 20 72042626 and delete it from your system. Thank you.\nThis email has been scanned for email related threats and delivered safely by Mimecast. For more information please visit http://www.mimecast.com\n\n<<<PAGE 5>>>\n\nwith the American Society of Mechanical Engineers (ASME) pressure vessel code by\nmanufacturers who hold the U-stamp qualification awarded by ASME.\nIntroduction - R. P. Boneham\nI am professional in the transport of dangerous goods (hazardous materials), a profession I\nhave followed in one way or another since 1967.\nFor a period of time between 1967 and 1977 I was employed in logistics for the UK chemical\nmanufacturer Albright and Wilson Ltd., based in Oldbury, near Birmingham. That company\ndoes not exist anymore but parts of the business are now in the ownership of the Belgian\ncompany Solvay through various take-overs and mergers.\nThat company manufactured among other chemicals elemental phosphorus, phosphorus\noxychloride and phosphorus trichoride.\nFrom 1977 until 1985 I headed up the tank container department for the short-sea container\nshipping line Bell Lines.\nBetween 1985 and 1987 I worked for the UK daughter company of the German Hoyer group\nin various capacities.\nSince 1987 I have been a trainer and consultant in the transport of dangerous goods\nspecialising in the tank container\nIntroduction - ATCO, EPTA and ITCO\nIntroduction - Representation of the Industry at the United Nations etc.\nIn 1980 I took an initiative to found the first trade association anywhere in the world to\nrepresent the interests of the tank container industry. It was called the Association of Tank\nContainer Operators (ATCO). I was assisted by several tank container operating companies\nof the day to do this including Bailee Freight Services (now part of the Den Hartogh group,\nTrafpak (now part of the Stolt group), Unispeed (no longer in existence) and Suttons.\nIn 1987, when I became an independent consultant, steps were taken to broaden the\ngeographical base of the trade association. Its name was changed to the European Portable\nTank Association (EPTA). By this time it had grown to include as members the two largest\noperators of tank containers, Stolt and Hoyer as well as several tank container construction\nand leasing companies.\nAt this time, too, I was asked by ATCO/EPTA to represent the interests of the tank container\nindustry on international bodies which make regulation and/or standards. I immediately\n\n<<<PAGE 6>>>\n\nwaterways.\nI have attended meetings with the International Maritime Organisation.\nI have served on the technical committee advising the European Commission on the transport\nof dangerous goods.\nThese days in my early 70s I do not attend the international meeting but still remain an\nadviser to the UK's Department for Transport and its agencies responsible for the various\nmodes of transport.\nA synopsis of my curriculum vitae is appended\nThe Work of the United Nations Committee of Experts on the Transport of Dangerous\nGoods\nThe prestigious UNCoETDG was set up by the UN in the 1950s with the purpose of drafting\na set of recommendations on the transport of dangerous goods which could be adopted by all\nnational and international law makers. Its function is to ensure safety of life and\nenvironmental protection by making its recommendations as well as to try to ensure there are\nharmonised regulations throughout the world for the multi-modal transport of dangerous\ngoods i.e. that to try to ensure that wherever possible the same regulations apply to their\ntransport by air, inland waterways, rail, road and sea. It publishes its recommendations in\nthe United Nations Recommendations for the Transport of Dangerous Goods - Model\nRegulations. Currently these have reached 19 published revisions with another 20** edition\nawaiting publication in a few months' time:\nTRANSPORT\nGOODS\nOF DANGEROUS\nIt may be freely downloaded from:\n\n<<<PAGE 7>>>\n\n(ICAO) responsible for international transport of dangerous goods by air and the regional\ninternational regulations for the transport of dangerous goods by rail, road and inland\nwaterways (RID/ADR/ADN) in Europe.\nIt hoped by these methods that the rules for the transport of dangerous goods in Portable\nTanks are the same both in North America, for transport by air and sea and by the other\nmodes of transport in Europe though it has to be said each of these authorities, either national\nor international reserve the right to withhold or amend a UN recommendation of which more\nshortly.\nLack of Harmonisation - First Generation Portable Tanks\nUNSCoETDG Portable Tanks Working Group - Second Generation Portable Tanks\nUSA Capitol Hill and Responses to the Bhopal Incident\nDespite the first tank containers as we know them today emerging in the late 1960s and\ndespite providing a first set of recommendations for the design, construction, inspection,\ntesting, certification, use, and in-service intermediate periodic and periodic testing of portable\ntanks in the early 1970s, the UNCoETDG did very little to review and revise its\nrecommendations in the intervening period until the 1990s. By then significant differences\nhad arisen between the USA requirements for design etc. the requirements of the IMDG Code\nand the European RID/ADR. We can call these for the purposes of this paper \"first\ngeneration portable tanks\".\nIn 1994 the UNCoETDG authorised a working party to be set up to review all these\ndifferences, to try to bring back harmonisation in the requirements for the design etc. of\nportable tanks, in other words to make a new set of recommendations acceptable to these\nthree main sets of regulation makers for a second generation of portable tanks.\nI was a member of that working party tasked with producing what is, essentially, what we see\ntoday as Chapters 4.2 and 6.7 of the IMDG Code/RID/ADR/ADN and equivalent provisions\nof the CFR 49.\nOne cannot design a portable tank from Chapters 4.2 and 6.7 alone. Rather, as these must\nbe pressure vessels, one takes a national pressure vessel code (if there were an ISO standard\npressure vessel code that would be different as the UN always gives preference to ISO\nstandards in its dangerous goods recommendations - there is an European EN standard for\npressure vessel dangerous goods transport design etc. this cannot be accepted as it is a\nregional standard only). During our work some 24 or so national pressure vessels were\nidentified.\nThe working group was chaired by Professor Ing. Bernt Schulz-Forburg from the BAM in\nBerlin, Germany. Its secretary was Mr. Bob Richards from the USA Department for\n\n<<<PAGE 8>>>\n\npushed for the adoption of the U-stamp qualification as a requirement for the design etc. of\nportable tanks intended to transport liquefied gases of Class 2 and for any liquid substance\ntoxic by inhalation at the Packing Group I level of Class 6.1 (not if the substance was toxic\nby ingestion or absorption through the skin at the Packing Group I level, by the way. I shall\nrefer to this range of chemicals as TIH products from now on.\nI had little concern about this as an industry representative as this was already a requirement\nin the CFR 49 DOT 51 specification Portable Tanks. I knew that for the most part, the\nindustry in those days and still today largely uses the ASME Division VIII pressure vessel\ncode for all portable tanks as this was an established requirement of CFR 49 going back 10s\nof years.\nI also knew that there was the requirement in the CFR 49 for all those 10s of years\nfor portable tanks for use in the USA even in international commerce intended to transport\ngases and liquids which are TIH. If we wanted portable tanks to be available for the\ntransport of dangerous goods throughout the world including for transport into and from the\nUSA we had to comply with the U-stamp requirement.\nMy colleagues from the ministerial delegations sitting on the portable tanks working group\ncould not accept this proposition from the USA. A principle reason for this is that they, as\ndiplomats, could not accede to any requirement which would effectively give the USA\njurisdiction on their territories. Germany, France followed e.g. by the Netherlands, Spain\nand the UK strongly opposed the USA proposition about the precedence they wished to\nestablish for the ASME code and above all for the U-stamp requirement. As representatives\nof sovereign nations, they could not allow the imposition of what was effectively seen as an\nenforcement body which grants the U-stamp qualification to manufacturers from another\ncountry on their territory.\nThis debate raged on for the three years of the portable tanks working group. It was\ndiscussed many times during all its sessions. I heard all the debates and also took part in\nfurther informal discussions about the USA's entrenched position. The USA did make one\nsmall concession in that for portable tanks intended for non-TIH products they would be\nprepared on application to the DOT to allow the use of an alternative pressure vessel code but\nthis was to no avail. The impasse remained\nIt is worth considering why the DOT was so entrenched in its position. As mentioned\nabove, the requirement was a long-standing requirement for first generation portable tanks of\nthe last century i.e. USA DOT specification 51 portable tanks. Then the terrible incident in\nBhopal at the Union Carbide plant occurred on 2nd December 1984 where approximately 45\ntonnes of the chemical Methyl Isocyanate was released. 45 tonnes is the equivalent of\napproximately two tank containers. Various sources put the immediate death toll at between\n2500 and 3500. Sources say that 17000 or more died from the prolonged effects of exposure\nto this chemical with deaths from exposure possibly still happening today.\n\n<<<PAGE 9>>>\n\nWhen the time came to insert the requirements drawn up by the working group on which I\nserved in the 1990s the USA DOT did as all governments and international bodies are under\nan obligation to the UN to do, they amended the CFR 49 of the day to incorporate the revised\nrules for design etc. BUT RETAINED the U-stamp requirement for any portable tank to be\nused on the territory of the USA for the transport of gases and TIH liquids.\nThe Internal Memorandum of Burr Forman LLP\nPrecedence of the IMDG Code?\nI have been given a 15-page internal memorandum from Burr Forman LLP to study\nconcerning this U-stamp issue.\nBefore I review that memorandum, I would like to address the issue of whether the provisions\nof the International Maritime Dangerous Goods Code (IMDG Code) takes precedence over\nthe CFR 49 rules for portable tanks used in international commerce for the transport of\ndangerous goods, particularly TIH liquids. Were this to be the case, the USA DOT could\nsay this quite openly and straightforwardly. But this is not the case.\nThe USA DOT in\nCFR 49 do not say this. Rather at §171.25 of CFR 49 onwards the USA DOT embarks on a\nseries of additional requirements to be complied with in the USA over and above the\nrequirements of the IMDG Code. I quote from §171 (b) \"Any person who offers for\ntransport or transports a hazardous material in accordance with the IMDG Code must also\nconform to the following additional conditions and requirements....\". It should be noted\nthat the text does not mention whether these additional requirements apply to exports from\nthe USA or imports into the USA so that anyone offering hazardous materials in either\ndirection is obliged to follow these requirements. That statement makes it clear that whilst\ntransport under the provisions by any mode of transport covered by CFR 49 in the USA using\nthe provisions of the IMDG Code, an offeror may only do so providing the additional\nprovisions of CFR 49 are followed. The statement is helpful overall in carrying out\nmultimodal transport operations involving the territory of the USA. The USA DOT could\nhave quite simply said \"comply with CFR 49 at all stages for imports and exports\".\nIt is unfortunate in my opinion that all the relevant provisions for the transport of hazardous\nmaterials (the USA DOT uses the term hazardous materials but the UN uses the term\ndangerous goods. They are tantamount to the same thing.) concerning the interface between\nthe international regulations such as the IMDG Code and CFR 49 are not grouped together all\nin one place.\nIn connection with the U-stamp requirement I would firstly point to §171.2 (b) (1) and (2)\ndealing with the limitations of use of international standards and regulations, the IMDG Code\nbeing mentioned as one of these. (2) of this subparagraph states that the hazardous material\n\"must conform to all the applicable requirements of this subpart\", the subpart being subpart C\n\n<<<PAGE 10>>>\n\ndraw attention to the requirements at §171.25 (c) (3) dealing with the interface between the\nIMDG Code and CFR 49 \"Except as specified in this subpart for a material poisonous (toxic)\nby inhalation, the T-codes specified in Column (15) of the Dangerous Goods List of the\nIMDG Code may be applied to the transportation of these materials [TIH] in IM, IMO and\nDOT Specification 51 portable tanks when these portable tanks are authorised in accordance\nwith the requirements of this subchapter.\" What this paragraph does is to deal with first\ngeneration portable tanks in requiring any additional requirements for these tanks contained\nin Subpart C of the CFR 49 including the U-stamp requirement.\nI hope to have shown that for both first generation and second generation portable tanks\nintended for the transport of TIH substances, the U-stamp requirement stands and overrides\nany IMDG Code provision.\nAnalysis of Burr Forman - Page 2, 4 and 5\nBurr Forman argue on page 2 of the memorandum that §171.22 et sq. that these parts of CFR\n49 \"In short must transport goods in compliance and conformity to only the IMDG Code.\"\nIn my opinion this is a mis-reading of this part of CFR 49. $171.22 is stating that the IMDG\nCode must be followed but this subparagraph is modified by the additional requirements of\n§171.23 and §171.25. The three subparagraphs must be taken together.\nFor similar reasons, I cannot agree with the statement on page four \"We believe hazardous\nmaterials arriving in the United States by vessel falls outside of 49 CFR §171.23 entirely.\"\neither. I believe this also to be a mis-reading of CFR 49. In any case, these statements in\nthe memorandum need to be taken in conjunction with §171.22 (b) (2) whereby goods\ntransported under the IMDG Code provisions must also \"\n...conform to all applicable\nrequirements of this subpart\" i.e. Subpart C, 8171 to 189.\nSimilarly it seems to me that the statement made in the memorandum at §171.25 (c) is also a\nmis-reading of this at (3), as already pointed out. (3) deals with the situation with first\ngeneration portable tanks intended for the transport of TIH substances which allows their\ncontinued use even though these specification tanks have effectively been withdrawn from\nCFR 49 - new first generation portable tanks not allowed to be authorised from 01.01.2003\nonward. They continue to be subject to U-stamp (and R-stamp) requirements.\nR-stamp Requirements\nIt should be noted that anyone making a repair or a modification to a first generation or\nsecond generation portable tank needs to hold an ASME R-stamp qualification.\nTransport v. Transportation\n\n<<<PAGE 11>>>\n\nIt is open to anyone to apply to the USA Department for Transportation for an official\ninterpretation of the USA CFR 49. Should my conclusions not be acceptable (based on\nmany years of experience in all this, the website mentioned below should be consulted.\nhttps://phmsa.dot.gov/hazmat/regs/interps\nRoy Boneham,\nPrincipal Consultant\nNew Alchemy Training and Consultancy Organisation,\n26 Hawkshead Street,\nSOUTHPORT,\nMerseyside PR9 9HF,\nUnited Kingdom.\nTel:\n+ 44 (0) 1704 537094\nFax:\n+ 44 (0) 1704 501144\nMobile: + 44 (0) 7831 574692\nwww.newalchemy.co.uk\n22nd March 2017\nIssue No. 1\nRevision No. 0\n\n<<<PAGE 12>>>\n\nHe joined the major UK-based chemical manufacturer Albright & Wilson for whom he worked for\neight years mainly in posts concerned with distribution logistics. This company, at the location\nwhere he worked, produced some extremely hazardous chemicals such as elemental phosphorus\nand/or its compounds.\nIt was here that he began to learn the proper 'Responsible Care' of hazardous\nmaterials in transport.\nIn 1977 he joined the European short-sea integrated Lift-on/Lift-off container shipping line Bell Lines\nLtd where he headed up their tank container operations. He was responsible for marketing policy,\nsales, operations, maintenance and repairs policy and the bottom line of the tank container business\ncentre.\nEventually he was appointed the safety officer for the company with particular\nresponsibilities for crew safety at sea when hazardous cargoes were on board.\nAs an example of\nthe responsibilities he had to discharge, he had to organise a middle-of-the-night rescue of two ship's\ncrew members while making its passage to Waterford where the crew had been overcome by chemical\nfumes.\nHe also conducted several in-house training courses for this employer and became involved\nfor the first time directly in negotiations with government officials on dangerous goods matters.\nWhile at Bell Lines, Roy was instrumental in founding the Association of Tank Container Operators\n(ATCO), becoming its first Secretary in 1980. Later this association became the European Portable\nTank Association (EPTA) which subsequently merged with a North American similar organisation to\nbecome the International Tank Container Organisation (ITCO).\nAt the same time as founding his training and consultancy practice in 1987, his services as\nSecretary of the ATCO were confirmed when this role was taken over on a part-time basis.\nWhen inn 1994 ATCO became the EPTA he was appointed to be its Executive Officer.\nWhen ITCO was formed he acted for a period as its consultant.\nLater, from 1985 to 1987 he spent two years with the UK daughter company of the Hoyer\ngroup with wide ranging responsibilities including for the transport of cryogenic gases,\nproject team member for the group with respect to the transport of granular and powdery\nmaterials in bulk, managing a tanker cleaning station.\nFor a number of years during the 1990s he represented the tank container industry on:\n• The United Nations Committee of Experts on the Transport of Dangerous Goods\n(UNCoETDG)\n• The United Nations Joint Committee on the RID/ADR/ADN\n• The United Nations WP.15 Committee on the ADR\n• The European Commission's Technical Committee on the transport of dangerous\ngoods\nIn this work he has played an influential part in the development of global and European\nregional regulations concerning the transport of dangerous goods, often piloting proposals\ngenerated by himself for regulatory improvement through to a conclusion.\n\n<<<PAGE 13>>>\n\nThe British Royal Air Force\n-\nAKZONobel Decorative Coatings\nAKZONobel International Paints\n-\nAMG\nArizona Chemical\nAlbright and Wilson\nDead Sea Bromine Group\nEsso\nGlaxoSmithKline\nHoechst\nICI\nMerck, Sharpe and Dohme\nRhodia\nSchering Plough\nShell\nThe South African Tank Container Association\nWarner Lambert Group\nAnd a wide variety of smaller speciality chemical manufacturers and\ndistributors.\nHe has appeared several times as an expert witness in both criminal and civil court cases\nconcerning the transport of dangerous chemicals.\nWhile the industry representative on the prestigious UNCoETDG he served on a working\nparty of the developing a new regime for the design, construction, inspection, testing and use\nworldwide of portable tanks (tank containers) which began to become law in the latter part of\n2000. The results of this work can be seen, for example, in Chapters 4.2 and 6.7 of the\nIMDG Code which regulates international transport of dangerous goods by sea.\nRoy developed a five-day training course for tank container operators in 1987. He\ncontinues to present this course today. It has been attended by nationals from Australia,\nBelgium, Brasil, Bulgaria, China, France, Germany, Hong Kong, India, Indonesia, Ireland,\nIsrael, Mexico, Netherlands, Philippines, Poland, Singapore, South Africa, South Korea,\nSaudi Arabia, United Kingdom and the United States.\nCourses have been presented \"in-house' to several tank container operators including\nBulkhaul, Goodrich Maritime, Hoyer Global, Interbulk, NRS-Interflow, Stolt Nielsen.\nHe has also been involved with the activities of relevant Directorates within the European\nCommission in Brussels and with the drafting of international ISO standards for containers.\nAlthough Roy no longer represents the tank container industry on the international\ncommittees concerned with the transport of dangerous goods he remains an adviser to the UK\n\n<<<PAGE 14>>>\n\nof Europe and is also the Chief Examiner for this qualification in the Republic of Ireland.\nIn the latter capacity he is totally responsible for setting the exam papers, marking them and\nmaking recommendations as to who should be awarded this new prestigious qualification in\nIreland\nFrom 1987 to 1999 he was intimately involved in the arrangements in the United Kingdom\nfor the training of dangerous goods vehicle drivers through the National (Dangerous\nSubstances) Driver Training Scheme. In particular, he helped to develop the training\nmaterial used by some 30 training establishments in the UK.\nIn 2001 he took over the Dangerous Goods Agency upon the retirement of a colleague (in his\nearly 80s) and now leads this respected team of consultant Dangerous Goods Safety Advisers\nin the UK and Ireland.\nIn his consultancy work he has become actively involved in the transport of dangerous waste,\nthe relationship between the transport regulations, the UK's national regulations for the\ndisposal of hazardous waste, its international transport within Europe and in aspects of the\nBasle Convention.\nHe has written many articles for publications associated with the transport of dangerous\ngoods.\nProjects concluded by Roy include:\nassisting non-European company to acquire re-assessment of its gas bottles\nunder new European legislation called the Transportable Pressure Equipment\nDirective\nassisting a small multi-national company to understand the complexities of the\nclassification system for aquatic pollutants\ndelivering what was probably the first training course in Ireland on the\nseparate system of law for the classification and labelling of dangerous\nsubstances for 'supply'\n-\npreparing Dangerous Goods Safety Adviser annual reports both for his own\nclients and as surrogate for other DGSAs\npreparing a missing set of transitional regulations for inclusion in the IMDG\nCode\nassisting a major multi-national company to revise the rules for the transport\nof a substance liable to dangerous polymerisation\npreparing a lengthy report for the UK Health and Safety Executive on the\ndangers associated with tipping bulk containers for discharge along with a\n\n<<<PAGE 15>>>\n\nRoy Boneham.\n07 May 2002\nRev 4 11 April 2010\nRev 5 09 September 2016\n\n<<<PAGE 16>>>\n\nTo:\nTo Whom it May Concern\nFrom:\nChet Hosch/Anna Browning\nDate:\nMay 2, 2017\nFACTS\nA manufacturer is transporting multiple foreign-made United Nations (UN) standard\nportable tanks (\"UN portable tanks\") of phosphorus trichloride (PCL3) and phosphorus\noxichloride (POCL3) (collectively, the \"Products\") in shipment from Europe by vessel to the\nUnited States. The Products are in liquid state and are a material poisonous by inhalation as\ndefined in 49 CFR §171.8. The Products in T20 portable tanks, after being held in freight at a\nUnited States port pending delivery to the customer, are then transported by motor carrier across\npublic highway to a nearby state to the customer.\n49 CFR $178.273(b)(6) addresses the need for owners and manufacturers of portable\ntanks to obtain approval of the appropriate agency, the process for that approval, recourse for\ndenial, re-approval after modification and termination of approval. Part of this approval process\nis ensuring that packagings, such as UN portable tanks, are compliant with all engineering,\nmarking, labeling, and placarding requirements under Title 49, Parts 171-180. However, certain\nof these requirements are excepted where UN portable tanks are manufactured according to the\nALABAMA • DELAWARE • FLORIDA • GEORGIA • MISSISSIPPI • TENNESSEE\n29428229 v1\n29428229 v2\n\n<<<PAGE 17>>>\n\n2\n29428229 v1\n29428229 v2\n\n<<<PAGE 18>>>\n\ntransported by vessel in part in its passage pursuant to the IMDG Code and if the UN portable\ntanks fully conform to applicable provisions in the UN Recommendations and applicable\nrequirements of Hazardous Materials Regulations at 49 CFR Parts 171-180, Subchapter C\n(\"HMR\") and are capable of passing the prescribed tests in applicable standards of the HMR.\nCONCLUSION\nWe have reviewed Subchapter C of Title 49, Subtitle B, Chapter I, Parts 171 through 180,\naddressing authorization and requirements for the use of international transport standards and\nregulations for hazardous materials. We conclude the Products described above are not\nrequired to be shipped by U Stamp marked UN portable tanks pursuant to 49 CFR\n§178.273 or 274, because the tanks meet those standards of the IMDG Code and because\nthese UN portable tanks manufactured outside the United States in accordance with\nnational or international regulations based on UN Recommendations are considered to be\nauthorized packagings under the applicable provisions of the HMR.\nANALYSIS\n49 CFR $171.22.\nSection 171.22 authorizes, subject to certain conditions and\nlimitations, the transportation in commerce of hazardous materials in accordance with the IMDG\nCode. In addition to compliance with and conformity to the requirements of the IMDG, a\n3\n29428229 v1\n29428229 v2\n\n<<<PAGE 19>>>\n\n§8171.22 through 171.27.\nSection 171.22(e) expressly provides for transportation of forbidden materials.\n\"Forbidden materials\" generally include those designated as forbidden in column 3 of the\nHazardous Material Table reproduced in Section 172.101 (the \"Table\"). They also include\ncertain other materials: (i) designated explosives, (ii) materials in shared packaging, the mixing\nof which is likely to cause a dangerous evolution of heat, or flammable or poisonous gases or\nvapors, (iii) materials in packages which give off a flammable gas or vapor, (iv) materials in\npackages containing materials which will detonate in a fire, and (v) certain oxygen generators.\nThe Table extract below confirms the Products offered are not forbidden materials.\n(8)\n(10)\nSumbol Hazardous materials descriptions Hazard class Identification\nand proper shipping names\ndrivision\nambers\nPC\nLabe\nSpecial\nCode\nProvisions (S\n172.102)\nPackaging (§ 173.AA*)\nQuantity Limitations\n(see $$ 173.27 and\n175.75)\nVessel Ston age\nExceptio Non-\nBulk\nlateraturE\nPassenger\nSTRAT\nCargo\nbulk\nonly\nLocation Other\n(1)\n(2)\n(3)\n(4) | (5)\n(6)\n(7)\n(8) | (8B) (8C)| (94)\n(9) |(10A)| (10B)|\nPhosphorus trichloride\n16.1\nTUN1809\n6.18\n12, B9, B14.\n1227\n244\nForbidde Forbidde C\nB15, B32,\nn\n40\nT20. TP2,\nB77, N34.\nTP13, TP38,\nTP45\nPhosphorus oxychloride\n16.1\n[UN1810\n6.1,8\n72, B9, B14,\nB32, B77.\nNone\n227\nzaa Forbidde Forbidde lo\n140\nTP2, TP13.\nN34. T20.\nTP38. ТP45\n4\n29428229 v1\n29428229 v2\n\n<<<PAGE 20>>>\n\nrequirements, security requirements, and incident reporting requirements under 49 CFR §§171\nand 172. Thus, a company which transports hazardous material in compliance with the IMDG,\nas here described, will be compliance with Section 171.22(f) as well as Section 171.22(g),\nprovided, the company complies with the training, security, and incident reporting requirements\nunder 49 CFR §§171 and 172.\nWe could find no express provision for application of Hazardous Materials Regulations at\n49 CFR Parts 171-180, Subchapter C (\"HMR\") generally to products in transport under the\nIMDG Code not classified as a forbidden material. In fact, it is only in such cases where a\nmaterial is designated as a hazardous material under HMR, but excepted from or not subject to\nthe IMDG or other international transport standards and regulations, that such hazardous material\nmust expressly be transported in accordance with all applicable requirements of HMR pursuant\nto 49 CFR §171.22(c). Had Congress or the Department of Transportation intended otherwise, it\ncould have plainly said so.\nSection 171.25. We have examined the additional requirements for the use of the IMDG\nCode under 49 CFR §171.25 that hazardous materials may be offered for transportation within\nthe United States by motor carrier in accordance with the IMDG Code provided at least part of\nthe movement is by vessel provided such shipments conform to the requirements in 49 CFR\n§171.22 as applicable and 49 CFR §171.25, as applicable. It does not require such shipments\nconform to requirements under 49 CFR §171.23. Thus, we believe a hazardous material arriving\n5\n29428229 v1\n29428229 v2\n\n<<<PAGE 21>>>\n\nthe requirements of Part 177. Part 177 provides for general requirements for shipping by\nhighway, including but not limited to unacceptable hazardous materials, inspection requirements,\ncertain Federal Motor Carrier Safety Regulations, tunnel use regulations, training requirements\nfor portable tanks, shipping papers, and emergency movement rules. We could find no provision\nin Part 177 requiring the \"U Stamp\" marking or marking requirements for portable tanks.\nAny person who offers for transportation of hazardous materials by highway in\naccordance with the IMDG Code, must comply with placard rules in accordance with Subpart F\nof Part 172. This Subpart F of Part 172 does not provide any guidance or requirements regarding\n\"U-Stamps\". Finally, when a hazardous material is transported by motor vehicle on a public\nhighway the segregation requirements of Part 7, Chapter 7.2 of the IMDG Code are authorized.\nAny person who offers for transportation of hazardous materials by vessel in accordance\nwith the IMDG Code must conform to the requirements in Part 176 of HMR. For transportation\nby rail subsequent to transportation by vessel in accordance with the IMDG Code, a shipment\nmust conform to the requirements of Part 174.\nSection 171.25(c) plainly states \"[e]xcept for IBCs and UN portable tanks used for the\ntransportation of liquids or solids, bulk packagings must conform to the requirements of this\nsubchapter.\" We do not believe, therefore, that the Products, a liquid, to be shipped by UN\nportable tank, are otherwise subject to the bulk packaging requirements of the HMR. If\n6\n29428229 v1\n29428229 v2\n\n<<<PAGE 22>>>\n\ntransportation of liquids or solids still falls outside the bulk packaging requirements of 49 CFR\n§171.25(c). We do not believe the requirements that follow the Products; these requirements\napply to gases offered for transport by UN portable tanks, not liquids.\nOur conclusions have been confirmed by the Pipeline and Hazardous Materials Safety\nAdministration (\"PHMSA\") of Department of Transportation in PHMSA Interpretation #13-\n0151 dated April 8, 2014. The letter is attached at Exhibit A. There, the distributor requested\nclarification of the HMR applicable to UN portable tanks. The PHMSA states with finality\n\"when transported to, from or within the United States, §171.25(c) requires UN portable\ntanks used to transport gases to comply with the HMR.\"\nA contradictory, but flawed position to this is that a manufacturer and distributor of the\nProducts described is subject to 49 CFR $178.273(b)(6). Such position stands as follows:\n§ 178.273 Approval of Specification UN portable tanks.\n(a) Application for approval.\n(1) An owner or manufacturer of a portable tank shall apply for\napproval to a designated approval agency authorized to approve the\nportable tank in accordance with the procedures in subpart E, part 107 of\n*****\n(b) Action by approval agency. The approval agency must perform the\nfollowing activities:\n*****\n7\n29428229 v1\n29428229 v2\n\n<<<PAGE 23>>>\n\nDivision 1 of Section VIII of the ASME Code (IBR, see § 171.7 of\nthis subchapter). Other design codes may be used if approved by\nthe Associate Administrator (see § 178.274(b)(1));\n(ii) All applicable provisions of the design and construction\nhave been met to the satisfaction of the designated approval agency\nin accordance with the rules established in the ASME Code and\nthat the portable tank meets the requirements of the ASME Code\nand all the applicable requirements specified in this subchapter;\n(iii) The inspector has carried out all the inspections\nspecified by the rules established in the ASME Code; and\nvmbol under the authoritv of the authorized independer\nv) The portable tank is marked with a U stamp cod\ninspector.\nSection 273 is made applicable to UN portable tanks used for Division 6.1 liquids,\nHazard Zone A and B, pursuant to 49 CFR §173.244(c). Section 173.244 states, in relevant part:\n§ 173.244 Bulk packaging\nfor certain pyrophoric liquids (Division 4.2),\ndangerous when wet (Division 4.3) materials, and poisonous liquids with\ninhalation hazards (Division 6.1).\nWhen § 172.101 of this subchapter specifies that a hazardous material be\npackaged under this section, only the following bulk packagings are authorized,\nsubject to the requirements of subparts A and B of part 173 of this\nsubchapter and the special provisions specified in column 7 of the § 172.101\ntable. [Emphasis added.]\n*****\n(c) Portable tanks: DOT 51 portable tanks and UN portable tanks that meet\nthe requirements of this subchapter, when a T code is specified in Column (7) of\nthe § 172.101 Table of this subchapter for the specific hazardous material, are\nauthorized. Additionally, a DOT 51 or UN portable tank used for Division 6.1\nliquids, Hazard Zone A or B, must be certified and stamped to the ASME Code as\nspecified in § 178.273(b)(6) of this subchapter\n8\n29428229 v1\n29428229 v2\n\n<<<PAGE 24>>>\n\nUN portable tanks used to transport the Products; UN standard packagings manufactured\noutside of the United States.\nIt says:\n(d)Specification packagings and UN standard packagings manufactured\noutside the U.S. -\n*****\n(2) UN standard packagings manufactured outside the United\nStates. A UN standard packaging manufactured outside the United States.\nin accordance with national or international regulations based on the UN\nRecommendations (IBR, see § 171.7 of this subchapter), may be imported\nand used and is considered to be an authorized packaging under the\nprovisions of paragraph (c)(1) of this section, subject to the following\n(i) The packaging fully conforms to applicable provisions\nin the UN Recommendations and the requirements of this subpart,\nincluding reuse provisions;\n(ii) The packaging is capable of passing the prescribed tests\nin part 178 of this subchapter applicable to that standard; and\n(iii) The competent authority of the country of manufacture\nprovides reciprocal treatment for UN standard packagings\nmanufactured in the U.S.\nThese requirements applicable to UN portable tanks used transporting the Products deliberately\nomits the U stamp requirement of 49 CFR 273.244(c).\nAgain, this issue was definitively addressed in Interpretation #13-0151 in which the\ndistributor requested clarification of the HMR applicable to UN portable tanks. The distributor\nprovided extensive information about the UN portable tanks and the specification related thereto.\nThese UN portable tanks:\n9\n29428229 v1\n29428229 v2\n\n<<<PAGE 25>>>\n\nperoxide), 6 (poisonous), 8 (corrosive), or 9 (miscellaneous); and\nAre manufactured by companies","truncated":true,"body_characters":46914}