{"operation":"document","citation":"17-0138","title":"Labelmaster — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2018-02-13","effective_on":null,"summary":"17-0138 response to Labelmaster concerning 173.4.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-17-0138.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-17-0138.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-17-0138","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/57341/170138.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nFEB 0 5 2018\nJim Shimko\nSenior Manager\nLabelmaster\n400 E. Pine Street, Suite 325\nSeattle, WA 98122\nReference No. 17-0138\nDear Mr. Shimko:\nThis letter is in response to your December 1, 201 7, email requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the de minimis\nexception found in§ 173.4b. Specifically, you seek clarification of the de minimis exception as\nit pertains to the HM-215J/224D final rule published January 14, 2009 [74 FR 2200] and certain\ninternational standards, including the International Civil Aviation Organization's (ICAO)\nTechnical Instructions (TI) for the Safe Transport of Dangerous Goods by Air and the\nInternational Maritime Dangerous Goods (IMDG) Code.\nWe have paraphrased and answered your questions as follows:\nQl. You ask whether Division 6.1, PG I (oral and dermal toxicity only) materials are eligible\nfor the de minimis exception in§ 173.4b.\nAl . The answer is no. Only PG II and III materials are eligible for the de minimis exception\nin§ 173.4b.\nQ2. You seek confirmation of your understanding that the de minimis exception in § 173 .4b\ndoes not align with the ICAO TI and IMDG Code. You further ask if this was the\nPipeline and Hazardous Materials Safety Administration's (PHMSA) intent.\nA2. Your understanding is correct. The ICAO TI and IMDG Code currently allow\nDivision 6.1, PG I materials with the excepted quantity provision \"E5\" to take the\nde minimis exception.\nThe HM-215J/224D final rule revised§ 173.4 and created two new sections: Excepted\nquantity in§ 173.4a and De minimis in§ 173.4b. Section 173.4b was created by moving\n§ 173.4(e) to its own section. Section l 73.4(e) was created by the HM-218D final rule,\npublished January 28, 2008 [73 FR 4699] in response to a petition that requested the\nexception for PG II and III materials only. The HM-215J/224D final rule did not propose\n\n<<<PAGE 2>>>\n\na change to this applicability. PHMSA received no comments on this change and,\ntherefore, adopted the provisions as proposed.\nIf you believe a rulemaking change-such as a revision, addition, or deletion-is\nwarranted, we invite you to file a petition for rulemaking in accordance with §§ 106.95,\n106.100, and 106.105 of the HMR, including all supporting information. Your request\nwill be evaluated for merit to be addressed in an upcoming rulemaking. For regulations\nin 49 CFR Parts 171-180, submit the petition to: Standards and Rulemaking Division,\nPipeline and Hazardous Materials Safety Administration, PHH-10, U.S. Department of\nTransportation, East Building, 1200 New Jersey Avenue, SE, Washington, DC 20590-\n0001. Please contact Mr. Steven Andrews in the Regulatory Review and Reinvention\nBranch of the Standards and Rulemaking Division at 202-366-8553 for more information.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely, ~\n- ./_ ..\n. //// z: '. ~ / // /' . .\n/ \" . / '\naz , ..\n/ . /\n1 Irk De · ·nder · ·\nChief, Standards Development\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nJanuary, Ikeya CTR (PHMSA)\nFrom: INFOCNTR (PHMSA)\nSent: Subject: Attachments: Friday, December 15, 2017 2:11 PM\nTo: Hazmat Interps\nFW: Request for Interpretation I De Minimis Exceptions\nFinal Rule 224D_215J.pdf; De Minimis_ST-SG-AC10-C3-2009-45e.pdf\nHello All,\nPlease see below and attached for interp request.\nThanks!\n-Breanna\nFrom: Jim Shimko [mailto:JSHIMKO@labelmaster.com]\nSent: Friday, December 01, 2017 5:20 PM\nTo: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>\nCc: Jim Shimko <JSHIMKO@labelmaster.com>\nSubject: Request for Interpretation I De Minimis Exceptions\nlnterp Application\nI would like to request an interpretation in regard to De minimis Exceptions as stated in §173.4b. Specifically on\nwhether a Division 6.1, packing group I is permitted under this exception.\nThe current text in §173.4b(a) implies that only substances of packing group II or Ill of a division 6.1 are permitted to be\noffered under the de minimis exceptions. Current International Standards as published in the UN Model Regulations\n(Part 3, Chapter 3.5 (3.5.1.4)), ICAO Tl (Part 3, Chapter 5, (5.6)) and the IMDG Code (Part 3, Chapter 3.5, (3.5.1.4) do\nallow the offering for transport of division 6.1, packing group I substances under such an exception. It is noted that the\nICAO Tl refers to this exception as De Minimis Quantities and the UN Model and IMDG Code use no specific title to this\nexception within their applicable sections.\nIn researching previous rule makings as communicated in my email below to Mr. Shane Kelley and the attached files, it is\nbelieved that division 6.1, packing group I materials were to be permitted under the De minimis exceptions. When 49\nCFR was being amended under Final Rule HM-224D, 215J dated January 14, 2009 this change may have been in error\nand was not the intended outcome.\nI look forward to your reply.\nThank you,\nJim Shimko, DGSA, CDGP\nSenior Manager\n400 E. Pine Street, Suite 325\nSeattle, WA 98122\nCell: 678-591-7908\nEmail: JSHIMKO@labelmaster.com\nWeb: www.labelmaster.com\n1\n\n<<<PAGE 4>>>\n\nLABEL~ASTER.\n---------- -··-·- ·-· -- -·········--- ·- -····- ·· .\nSERVICES\nConfidentiality Notice:\nThis communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510,\nand its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain\nconfidential information. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or\nattached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at +1-773-478-0900 and destroy the original\ntransmission and Its attachments without reading or saving in any manner.\nFrom: Jim Shimko\nSent: Thursday, November 02, 2017 12:07 PM\nTo: shane.kelley@dot.gov\nCc: Jim Shimko\nSubject: De Minimis Exceptions\nHi Shane,\nI hope you are doing well.\nI want to ask you about some historical rulemaking as it relates to De Minimis Exceptions. I am writing to you since you\nwere involved with Final Rule HM-224D I HM-215J issued in January 2009. I am also referencing the working paper\nsubmitted to the UN Sub-Committee by the U.S. in September 2009 (copy attached).\nWhat is driving the question is the ability to offer a Class 6.1, PG I (oral or dermal toxicity) under the De Minimis\nexceptions. As written today in 173.4b, only PG II or PG Ill is permitted, this is currently not harmonized with the\ninternational standards. I believe this may not have been the intended outcome and that such a classification should be\nallowed.\nIn the Final Rule PHMSA made changes to 173.4 (Small Quantity Exceptions) and created new sections 173.4a and\n173.4b. Under the old 173.4 a Class 6.1 PG I was permitted. In the preamble to the Final Rule PHMSA stated:\nWe believe that aligning the existing small quantity provisions in the HMR with the excepted quantity provisions for air\nand vessel transportation will enhance harmonization and increase safety.\nWe also are moving the exception for small quantities-less than 1 gram for solids and less than 1 milliliter for liquids per\ninner packaging currently found in§ 173.4(e)-to a new§ 173.4b. This will align the requirements of the HMR with those\nof the /CAO Tl and the IMDG Code for transport by air and vessel,\nWhen we also look at the working paper to the UN, in paragraph 5.(a) the U.S. states:\nInformal document UNISCETDG/35/INF. 59 suggested that as a starting point, the acceptable hazard classes\nand divisions could include: Class 3, Class 4, Divisions 5.1 and 6.1, Class 8, and Class 9 ......... ..... Further, it is\nbelieved that except for Division 6.1 (oral and dermal hazards) packing group I substances should not be\nincluded in this provision ... ............ this proposal would allow de minimis exceptions for minute quantities of\nDivision 2.2 (no subsidiary risk), Class 3, Class 4, Division 5.1 Division 6.1 (oral and dermal hazards only),\nClass 8, and Class 9.\nThe Table in this working paper also provides indication that a Class 6.1, PG I is allowable.\nAs referenced earlier, the current 173.4b allows only PG II and PG Ill substances under the De Minimis exceptions which\nis currently not harmonized with the international standards. Based on the Final Rule and working paper it appears the\nintent of harr:nonization was the objective but the outcome was not.\n2\n\n<<<PAGE 5>>>\n\nAny comment you could offer or, other historical information on this subject would be greatly appreciated.\nThank you,\nJim Shimko, DGSA, CDGP\nSenior Manager\n400 E. Pine Street, Suite 325\nSeattle, WA 98122\nCell: 678-591-7908\nEmail: JSHIMKO@labelmaster.com\nWeb: www.labelmaster.com\nLABEL~ASTER'\n---·--··----·------·--··-·\nSERVICES\nConfidentiality Notice:\nThis communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510,\nand its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain\nconfidential information. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or\nattached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at +1-773-478-0900 and destroy the original\ntransmission and its attachments without reading or saving in any manner.\n3","truncated":false,"body_characters":9671}