{"operation":"document","citation":"18-0108","title":"Hazmat Safety Consulting — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2018-11-15","effective_on":null,"summary":"18-0108 response to Hazmat Safety Consulting concerning 178.503.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0108.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0108.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0108","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/70056/180108.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nWashington, DC 20590\n1200 New Jersey Avenue, SE\nPipeline and Hazardous\nMaterials Safety\nAdministration\nNOV 1 5 2018\nRobert Richard\nPresident\nHazmat Safety Consulting\n10036 Lake Occoquan Drive\nManassas, VA 20111\nReference No. 18-0108\nDear Mr. Richard:\nThis letter is in response to your July 17, 2018, letter requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to the marking of United\nNations (UN) packagings. You note that the Pipeline and Hazardous Materials Safety\nAdministration (PHMSA) has stated in the past that a UN packaging may only be marked with\nthe \"USA\" designation in the UN specification marking if the packaging is manufactured in the\nUnited States. Therefore, you ask whether a Department of Transportation recognized laboratory\ncan assign a \"USA\" or \"f\" marking regardless of where it is manufactured.\nThe answer is no. As specifically written in § 178.503(a)(7), the letters \"USA\" indicate that the\npackaging is manufactured and marked in the United States in compliance with the provisions of\nthe HMR.\nHowever, PHMSA has received your petition for rulemaking to revise the HMR to allow for\npackagings manufactured outside the United States to be marked with the \"USA\" designation. It\nhas been assigned petition number P-1720 (PHMSA-2018-0033) and will be evaluated for merit\nin a future rulemaking\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention\nStandards and Rulemaking Division\n\n<<<PAGE 2>>>\n\nINTERPRETATION\nLETTERS\nRequester\nRobert Richard\nDate Received:\n7/20/2018\nCompany\nHazmat Safety Consulting\nTracking\n18-0108\nPhone\n773-540-0837\nRevision Date:\n7/20/2018\nDate Assigned\n7/20/2018\nDate of Letter\n7/19/2018\nStaff\nAndrews\nFirst Draft Due:\n8/10/2018\nSection\n173.24\nFirst Draft Date\nSubject\nMarking\nConcurrence\nStatus\nPHH-10-Specialist\nStatus Date\n7120/2018\nSign Date\nSignor\nComment\nHBP\nCopy to Docket\nCopy to DHM-60\n\n<<<PAGE 3>>>\n\nAndrewes\nmarking\n18.0108\nHAZMAT SAFETY CONSULTING, LLC\nJuly 17, 2018\nShane Kelley\nU.S. Department of Transportation\nPipeline and Hazardous Materials Safety Administration\nOffice of Standards and, PHH-10\n1200 New Jersey Avenue, SE\nEast Building, 2nd floor\nWashington, DC 20590-0001\nDear Mr. Kelley,\nI am writing to address a matter related to a potential PHMSA policy that effects the UN Third Party\nCertification Agencies and impacts the safe transportation of hazardous materials. Based on a 1994 UN\nThird Party Certification Agency meeting, PHMSA has stated that a UN packaging may only be marked\nwith the \"USA\" designation in the UN specification marking if the packaging is manufactured in the\nUnited States. Additionally, PHMSA has since clarified that physically marking the package in the United\nStates is the last step in the manufacturing process and therefore a company could source all or part of\nthe packaging manufacturing and supply of materials outside of the United States, test the package and\nthen import the packaging and apply the UN mark with \"USA\".\nDuring the November 29, 1994 meeting of the UN Third Party Certification Agencies, PHMSA informed\nthe UN Third Party Certification Agencies that when testing a foreign manufactured packaging, they can\nonly apply their \"+\" designation if the country in question recognizes the laboratory. It is not entirely\nclear if this remains to be PHMSA's position. This requirement is difficult because many countries\nincluding Columbia, Mexico or China are not responsive or willing to recognize USA third party labs. This\nhas caused serious issues for US companies that want to use U.S. third party labs to test and certify\npackagings where packaging components are sourced in other countries. This is particularly critical for\ncompanies that manufacture the same packagings both in the USA and other countries such as Mexico.\nPHMSA's position on not allowing third party labs to assign the USA and \"+\" designation to foreign\nproduced packaging is putting US third party labs at a disadvantage and does not enhance safety. US\nthird party labs are designated agents of PHMSA and are the subject of significant oversight by DOT\nenforcement personnel and the Office of Special Permits and Approvals in coordination with the Office\nof Science, Engineering and Research. Test reports from labs in other countries are not as\ncomprehensive and competent authorities don't provide equivalent oversight of packaging\nmanufacturers or the test labs. UN Third Party Certification Agency reports are reviewed and scrutinized\nby PHMSA and in many cases, are more comprehensive that those produced by foreign test labs\nbecause they must comply with the approvals issued by PHMSA. They provide a high quality and\ncompliant service promoting safety and ensuring that both US and foreign made packagings meet the\nHMR including additional US requirements required by the HMR (e.g. vibration standard). PHMSA has\n\n<<<PAGE 4>>>\n\nno jurisdiction over foreign test labs or packaging manufacturers so it makes no sense that they would\nnot allow the highly regulated UN Third Party Certification Agencies to test and certify these packagings\nand apply their \"+\" mark designations.\nPHMSA included specific requirements related to foreign made packaging in the HMR to prevent foreign\ncountries from not recognizing US manufactured and approved packaging and to ensure compliance\nwith additional HMR requirements in §173.24 General requirements for packagings and packages:\n(d) Specification packagings and UN standard packagings manufactured outside the U.S.- (1)\nSpecification packagings. A specification packaging, including a UN standard packaging manufactured in\nthe United States, must conform in all details to the applicable specification or standard in part 178 or\npart 179 of this subchapter.\nmanufactured outside the United States, in accordance with national or international regulations based\n(2) UN standard packagings manufactured outside the United States. A UN standard packaging\non the UN Recommendations (IBR, see $171.7 of this subchapter), may be imported and used and is an\nauthorized packaging under the provisions of paragraph (c)(1) of this section, subject to the following\nconditions and limitations:\n(i) The packaging fully conforms to applicable provisions in the UN Recommendations and the\nrequirements of this subpart, including reuse provisions;\n(ii) The packaging is capable of passing the prescribed tests in part 178 of this subchapter applicable\nto that standard; and\n(iii) The competent authority of the country of manufacture provides reciprocal treatment for UN\nstandard packagings manufactured in the U.S.\nHowever, PHMSA has not consistently or aggressively used the requirements to address non-compliant\nforeign made packing or confronted competent authorities that do not provide reciprocal treatment for\nUN standard packagings manufactured in the U.S.\nPHMSA is out of step with how markings are assigned in Europe and Canada where their transport\nauthorities allow the country code marking to foreign manufactured packagings if they are certified by a\nrecognized laboratory or in the case of Canada, registered with Transport Canada. The requirement in\nthe HMR in $178.503 Marking of packagings states:\n\"(7) The state authorizing allocation of the mark. The letters 'USA' indicate that the packaging is\nmanufactured and marked in the United States in compliance with the provisions of this subchapter;\"\nThis is not consistent with the requirement in the UN Model Regulations in 6.1.3.1(f) which states:\n\"The State authorizing the allocation of the mark, indicated by the distinguishing sign used on vehicles in\ninternational road traffic\"\nThe UN Model regulations do not require that the state authorizing the mark be the same as the state of\nmanufacture. A package can only carry a UN marking if it meets the performance testing so it makes no\nsense that PHMSA will not authorize US third party labs to test and certify foreign made packaging or at\n\n<<<PAGE 5>>>\n\nleast when the final step in manufacturing is applied in the U.S. A DOT recognized laboratory should be\nallowed to assign a specification marking that includes USA and the \"+\" designation regardless of where\nit is manufactured. There is no safety rationale for not allowing U.S. third party labs to test and certify\nforeign made packagings. In fact, authorizing U.S. third party labs to do so would enhance compliance\nand safety.\nIt is requested that your office confirm PHMSA's position on whether a UN Third Party Certification\nAgency when testing a foreign manufactured packaging, they can only apply their \"+\" designation if the\ncountry in question recognizes the laboratory. If this is PHMSA's position, I urge you to reconsider your\nposition on this matter.\nAdditionally, based on the lack of harmonization with the UN Model Regulations related to the\nindication of the use of the \"USA\" mark it is requested that under the upcoming UN harmonization rule\nthat you align the HMR with the UN model Regulations. In addition to this request a formal petition for\nrulemaking in this regard will be submitted.\nThank you in advance for your attention to this matter. Feel free to reach out to me to discuss this\nmatter or to address any questions.\nRobert A Kil\nRobert A. Richard\nPresident, Hazmat Safety Consulting\nPhone: 773-540-0837\nEmail: brichard@hazmatsafety.com\nwww.hazmatsafety.com\n\n<<<PAGE 6>>>\n\nDodd, Alice (OST)\nFrom:\nKelley, Shane (PHMSA)\nSent:\nFriday, July 20, 2018 4:01 PM\nTo:\nJanuary, Ikeya CTR (PHMSA); Dodd, Alice (OST)\nCc:\nDerKinderen, Dirk (PHMSA); Foster, Glenn (PHMSA); Nickels, Matthew (PHMSA)\nSubject:\n• FW: 3rd party lab use of \"+\" mark for foreign made packaging used in the USA\nAttachments:\n010236.pdf\nPlease make sure this email chain and attachment are provided to whomever is assigned to the incoming from Bob\nRichard I forwarded today.\nThanks\nFrom: Wiener, Aaron (PHMSA)\nSent: Friday, July 20, 2018 3:34 PM\nTo: Kelley, Shane (PHMSA) <shane.kelley@dot.gov>\nCc: Leary, Kevin (PHMSA) <Kevin.Leary@dot.gov>; Pfund, Duane (PHMSA) <Duane.Pfund@dot.gov>\nSubject: RE: 3rd party lab use of \"+\" mark for foreign made packaging used in the USA\nI think I found it. Q & A #13\nFrom: Kelley, Shane (PHMSA)\nSent: Friday, July 20, 2018 3:25 PM\nTo: Wiener, Aaron (PHMSA) <Aaron.Wiener@dot.gov>\nCc: Leary, Kevin (PHMSA) <Kevin.Leary@dot.gov>; Pfund, Duane (PHMSA) <Duane.Pfund@dot.gov>\nSubject: RE: 3rd party lab use of \"+\" mark for foreign made packaging used in the USA\nThanks I believe we had another one for flexible IBCs imported from MX but tested and marked in the USA where we\nonce said the application of the mark could be considered the last step in the mfr. process. But it likely predates\nfilemake. This find is very helpful. Thanks again!\nFrom: Wiener, Aaron (PHMSA)\nSent: Friday, July 20, 2018 3:19:42 PM\nTo: Kelley, Shane (PHMSA)\nCc: Leary, Kevin (PHMSA); Pfund, Duane (PHMSA)\nSubject: RE: 3rd party lab use of \"+\" mark for foreign made packaging used in the USA\nI found this one in Filemaker to Dzintars Petersons at Advanced Packaging Technology. 98-0255._I have not been able to\nlocate a pdf copy\nstaff, requesting information on the marking and use of Intermediate Bulk Containers (IBCs) that are manufactured in\nThis is in response to your letter of August 25, 1998, and subsequent telephone conversation with Diane LaValle, or my\nThailand under the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180).\nAn IBC that is manufactured and marked in Thailand should be marked \"TI\" for the country of origin and may not bear a\nUSA mark. It must also be marked with the name or symbol of the manufacturer and other identification of the IBC as\nacceptable to the competent authority of Thailand. Unless the Thailand competent authority has approved the use of the\nspecified by the competent authority for Thailand. A U.S. third party test lab may be used to test the IBC provided this is\nU.S. third test laboratory symbol, the U.S. third party laboratories designation should not be used in the UN packaging\n1\n\n<<<PAGE 7>>>\n\nmarking. An IBC that is manufactured in Thailand but assembled and marked in the U.S. may be marked \"USA\" as the\npackaging conforming to the IBC requirements. An IBC that is marked \"TI\" is qualified for use in the U.S. provided the\ncountry authorizing the UN mark. The person placing the UN symbol on the packaging takes responsibility for the\ncapable of withstanding the vibration test in § 178.819.\nconditions of § 173.24(d) are met. You should note that flexible IBCs including foreign manufactured IBCs, must be\nI hope this information is helpful.\nFrom: Kelley, Shane (PHMSA)\nSent: Friday, July 20, 2018 2:18 PM\nTo: Wiener, Aaron (PHMSA) <Aaron. Wiener@dot.gov>\nCc: Leary, Kevin (PHMSA) <Kevin.Leary@dot.gov>; Pfund, Duane (PHMSA) <Duane.Pfund@dot.gov>\nSubject: FW: 3rd party lab use of \"+\" mark for foreign made packaging used in the USA\nAs this goes through our loop, can you help me check for any interps on this? I thought we had one that said the\nmarking can be considered the last step in the manufacturing process, thereby allowing a foreign made package to be\ntested and subsequently marked in the US. It would still not allow the mark to be applied outside the US. The interp I\nrecall was issued in the 90s and signed by Frits, so if not in Filemaker I can search our old int'l interp binder.. which I\nthink I gave to Kevin. I am not suggesting we would give the same answer today, but would like to have it for review if\nwe can find it.\nFrom: Kelley, Shane (PHMSA)\nSent: Friday, July 20, 2018 1:53:09 PM\nTo: January, Ikeya CTR (PHMSA); Dodd, Alice (OST)\nCc: Nickels, Matthew (PHMSA); Foster, Glenn (PHMSA); DerKinderen, Dirk (PHMSA)\nSubject: FW: 3rd party lab use of \"+\" mark for foreign made packaging used in the USA\nColleagues\nPlease log for response as an interp\nThanks\nShane\nFrom: Bob Richard [mailto: brichard@hazmatsafety.com]\nSent: Thursday, July 19, 2018 7:46 AM\nTo: Kelley, Shane (PHMSA) < shane.kelley@dot.gov>\nSubject: 3rd party lab use of \"+\" mark for foreign made packaging used in the USA\nShane,\nThe attached letter is addressed to you. Can you please ensure it is appropriately logged and a response is prepared. I\nalso mailed a copy to your attention.\nBest Regards,\nBob Richard\nPresident, Hazmat Safety Consulting\nPhone: 773-540-0837\nEmail: brichard@hazmatsafety.com\n2\n\n<<<PAGE 8>>>\n\nwww.hazmatsafety.com\nCONFIDENTIALITY NOTICE: This transmission is intended only for the use of the individual or entity to which it is addressed and may\nnotified that any disclosure, distribution or copying of this information is strictly prohibited. If you have received this transmission in\ncontain information that is privileged and confidential. If the reader of this message is not the intended recipient, you are hereby\nerror, please notify us immediately by telephone and delete the original message.","truncated":false,"body_characters":14979}