George W. Wright & Associates, LLC — Hazardous Materials Safety Interpretation

Page 11200 New Jersey Avenue, SE Washington, DC 20590 U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration June 23, 2022 Ms. Doris Soran George W. Wright & Associates, LLC 505 Main Street, Suite 106 Hackensack, NJ 07601 Reference No. 21-0102 Dear Ms. Soran: This letter is in response to your November 10, 2021, letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the definition of an “undeclared hazardous material.” Specifically, you ask whether the requirement in § 171.16(a)(4) to file a Hazardous Materials Incident Report on DOT Form F 5800.1 is triggered when: (A) a shipping document fails to disclose a hazardous material; (B) a vehicle, container, or package fails to disclose exterior hazardous communication; or (C) both conditions of (A) and (B) exist. As defined in § 171.8 of the HMR, an undeclared hazardous material is a hazardous material that is subject to any hazardous communication requirements and is offered for transportation without any visible indication to the person accepting the hazardous material for transportation that a hazardous material is present. The requirements of § 171.16(a)(4) specifically apply to a discovered undeclared hazardous material and not merely a shipment for which any given required piece of hazard communication is missing.#

Page 2Please note that while an “undeclared hazardous material” is strictly defined in § 171.8, any omission of required hazard communication is a violation of the HMR, even when § 171.16(a)(4) does not apply. I hope this information is helpful. Please contact us if we can be of further assistance. Sincerely, T. Glenn Foster Chief, Review and Reinvention Branch Standards and Rulemaking Division#

Page 3Ballengee 21-0102 From: Foster, Glenn (PHMSA) To: Subject: Date: Dodd, Alice (PHMSA); Hillman, Kenetha CTR (PHMSA) FW: Definition of Undeclared Hazardous Material (49 CFR Sec. 171.8) Wednesday, November 10, 2021 12:18:22 PM Attachments: 20211110115001808.pdf Alice and Kenetha. Can one of you check in the attached as a LOI and assign to the next Specialist in the rotation, please? Thanks, Glenn From: Doris Soran <dsoran@wright-associate.com> Sent: Wednesday, November 10, 2021 11:56 AM To: Foster, Glenn (PHMSA) <Glenn.Foster@dot.gov> Cc: George Wright <gwright@wright-associate.com> Subject: Definition of Undeclared Hazardous Material (49 CFR Sec. 171.8) CAUTION: This email originated from outside of the Department of Transportation (DOT). Do not click on links or open attachments unless you recognize the sender and know the content is safe. Please see attached letter, dated November 8, 2021, from George W. Wright, Esq. Doris Soran George W. Wright & Associates, LLC 505 Main Street, Suite 106 Hackensack, NJ 07601 T: 201.342.8884 F: 201.343.8869 Wall Street Plaza 88 Pine Street, 7th Fl. New York, NY 10005 dsoran@wright-associate.com Http://www.wright-associate.com _______________________________ The information contained in this E-mail message is privileged, confidential and may be protected from disclosure. Any other use, printing, copying, disclosure or dissemination of this communication may be subject to legal restriction or sanction. If you believe that you have received this E-mail message in error, please reply to the sender. This E-mail message and any attachments have been scanned for viruses and are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened. It is the responsibility of the recipient, however, to ensure that this E-mail message is virus free and no responsibility is accepted by George W. Wright & Associates, LLC for any loss or damage arising in any way from its use.#

Page 4Narinder S. Parmar* VIA E-MAIL (glenn.foster@dot.gov) T. Glenn Foster Chief, Regulatory Review and Reinvention Branch Standards and Rulemaking Division Pipeline & Hazardous Materials Safety Administration U.S. Department of Transportation 1200 New Jersey Avenue, SE Washington, DC 20590 Re: Definition of Undeclared Hazardous Material (49 CFR Sec. 171.8) Dear Mr. Foster: Our office counsels transportation industry clients with respect to the United States Department of Transportation's ("DOT's") regulations, including the Hazardous Materials Regulations (HMR). Our review of 49 CFR Sec. 171.8 discloses an ambiguity in the definition of "Undeclared Hazardous Material" for which we respectfully request the PHMSA's advices. Section 171.8 recites, in relevant part, that an "Undeclared Hazardous Material" is one governed by the hazardous communication requirements and: New Jersey *** 505 Main Street Hackensack, NJ 07601 T 201.342.8884 (2) offered for transportation in commerce without any visible F 201.343.8869 indication to the person accepting the hazardous material for Wall Street Plaza New York transportation that a hazardous material is present, on either an accompanying shipping document or the outside of a transport 88 Pine Street, 7th Floor vehicle, freight container, or package (emphasis added). New York, NY 10005 www.wrighr-associare.com *Member NJ 8 NY Burs#

Page 5discovered. We would greatly appreciate the agency's clarification whether the duty to file a Form F 5800.1 pursuant to Section 171.16 is triggered if either of the following conditions are present: (A) a deficient shipping document failing to disclose a hazardous material and/or (B) a deficient vehicle, container or package placard or label failing to disclose a hazardous material. Alternatively, is the reporting duty triggered only when both conditions (A) and (B) exist? We thank you for your attention and assistance. Very truly yours, Surge W. Wight George W. Wright GWW:ds#