{"operation":"document","citation":"22-0053","title":"Alston & Bird — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2022-09-13","effective_on":null,"summary":"22-0053 response to Alston & Bird concerning 171.1, 171.8, 173.156, 173.24.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0053.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0053.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0053","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/76756/220053.pdf","body":"<<>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nSeptember 13, 2022\nMeaghan G. Boyd\nAlston & Bird\nOne Atlantic Center\n1201 West Peachtree Street\nAtlanta, GA 30309\nReference No. 22-0053\nDear Ms. Boyd:\nThis letter is in response to your May 27, 2022, letter requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to packages with mixed\ncontents of hazardous materials. You state that your client operates a warehouse and distribution\ncenter that receives incoming retail boxes—not marked or labeled—from a third-party carrier\nshipped on behalf of a retail company. These retail boxes contain various quantities of loose\nlimited quantity packages of different hazard classes—including lithium batteries on some\noccasions—and non-hazardous materials that are not packaged in an organized manner (e.g.,\nliquids are not packaged upright, fully regulated hazardous material packages are mixed in with\nlimited quantity material packages, etc.). The shipping documents show the client warehouse and\ndistribution center’s address as the third-party destination, where the retail company is the\nshipper and recipient. Moreover, the shipping documents do not indicate that hazardous materials\nmay be present inside the retail boxes. Lastly, you explain that your client wants to provide a\nthird-party shipping service—at the direction of the retail company—and wants to ensure\ncompliance with the requirements of the HMR and ask related questions. You note that the retail\nboxes are not opened in the presence of the third-party carrier which, for the purpose of the\nHMR, indicates unloading incidental to movement has not occurred.\nYou also provide photographs showing how these retail boxes are packaged with various\nhazardous materials and non-hazardous materials.\nWe have paraphrased and answered your questions as follows:\nQ1. You ask whether your client is performing pre-transportation functions when the retail\nboxes are opened and the inner packages are segregated and classified, in consideration\nthat those goods are intended for transportation again sometime in the future.\nA1. This is dependent on the specific scenario. For instance, opening the retail box and\nseparating the inner packages for on-site storage would not be considered a pre-\ntransportation function subject to the HMR. Whereas, preparing those inner packages for\n\n<<>>\n\ntransportation by performing functions such as determining appropriate hazard\ncommunication and packaging would be considered a pre-transportation function. Please\nrefer to § 171.8 for the definition and meaning of pre-transportation function.\nQ2. You ask whether your client is performing transportation functions under the scope of\nstorage incidental to movement when the retail boxes are opened and the inner packages\nare segregated and classified, in consideration that those goods are intended for\ntransportation again sometime in the future.\nA2. The answer is no. Based on the information you provided, it is the opinion of this Office\nthat the hazardous material is no longer in transportation in commerce and thus this\nactivity is not considered storage incidental to movement. Hazardous material at its final\ndestination—as indicated on the shipping documents—is no longer in transportation, and\nstorage of a hazardous material at the final destination is not storage incidental to\nmovement (see § 171.1(c)(4)).\nQ3. You ask whether your client would be responsible for reporting undeclared hazardous\nmaterials after the third-party carrier has departed the warehouse and distribution center\nfor which unloading incidental to movement did not occur, and later it was discovered\nthat the retail boxes contained such materials during the performance of pre-\ntransportation or during storage incidental to movement functions.\nA3. Regarding your specific line of questioning, the answer is no. Because the third-party\ncarrier has delivered the retail boxes to your client’s warehouse and distribution center\nand has departed the premises, the shipment is no longer in transportation in commerce,\nand a Hazardous Materials Incident Report is therefore not required. Performance of pre-\ntransportation functions is not considered “in transportation in commerce.”a Performance\nof a transportation function during storage incidental to movement is “in transportation in\ncommerce” and would require reporting upon discovery of undeclared hazardous\nmaterial. However, as noted in answer A2, the scenario as presented in your letter would\nnot be considered storage incidental to movement.\nQ4. You ask whether a retail box of mixed, loose goods that includes hazardous materials—as\nillustrated by the photographs you provided—meets the definition of “unitized” as\ndescribed in § 173.156(b)(1).\nA4. The answer is no. Although the HMR does not define the term “unitized,\n”b it is our\nunderstanding that the term means “to form or convert into a unit.” Based on the\na In accordance with 171.1(c), transportation of a hazardous material in commerce begins when a carrier takes\nphysical possession of the hazardous material for purpose of transporting it and continues until the package\ncontaining the hazardous material is delivered to the destination.\nb Merriam-Webster’s dictionary defines the term “unitize” to mean “to form or convert into a unit.”\n\n<<>>\n\nphotographs you provided, the inner packages would not be considered “unitized”\nbecause the contents inside the retail boxes are not packaged in a manner forming a unit\nor unified whole.\nQ5. You ask whether limited quantity hazardous materials shipped in accordance with\n§ 173.156(b)(1) are considered “undeclared hazardous material” as defined in § 171.8 if\nthe package does not comply with the packing requirements found in §§ 173.156(b),\n173.24, or 173.24a, and does not display a limited quantity marking.\nA5. An “undeclared hazardous material” means a hazardous material that is subject to any of\nthe hazard communication requirements such as shipping papers, marking, labeling, and\nplacarding in Part 172 or an alternative marking requirement in Part 173, but has been\noffered for transportation in commerce without any visible indication to the person\naccepting the hazardous material for transportation that a hazardous material is present,\non either an accompanying shipping document, or the outside of a transport vehicle,\nfreight container, or package. Compliance with §§ 173.24 and 173.24a has no bearing on\nthe determination of an undeclared hazardous material.\nHowever, compliance with § 173.156(b)(1) is relevant for the determination of an\nundeclared hazardous material. A condition for not having to mark in accordance with\nPart 172, Subpart D is that the limited quantity material must be unitized in cages, carts,\nboxes, or similar overpacks. As stated in answer A4, the contents inside the retail boxes\nwere not packed in a manner forming a unit or unified whole, and thus the transport of\nthe materials would still be subject to marking requirements (i.e., the limited quantity\nmarking). In such a case, the retail boxes would be considered undeclared hazardous\nmaterials because of the absence of the limited quantity marking.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nDirk Der Kinderen\nChief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<>>\n\nALSTON & BIRD\n1201 West Peachtree Street\nOne Atlantic Center\n404-881-7000 | Fax: 404-881-7777\nAtlanta, GA 30309-3424\nMeaghan G. Boyd\nDirect Dial: 404-881-7245\nEmail: meaghan.boyd@alston.com\nVia Email\nMay 27, 2022\nBill Schoonover\nAssociate Administrator for Hazardous Materials Safety\nU.S. Department of Transportation\nPipeline and Hazardous Materials Safety Administration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nwilliam.schoonover@dot.gov\nRe:\nLetter of Interpretation\nDear Mr. Schoonover,\nI am writing on behalf of a client of my firm that is engaged in warehousing, logistics, and\ndistribution services on behalf of a retail client. I am writing to seek a letter of interpretation\nfrom the Pipeline and Hazardous Materials Safety Administration with respect to three\nquestions, as set forth below.\nThe facts relevant to the three questions are as follows: My client operates a warehouse and\ndistribution center that receives incoming boxes from a retail company. The retail company's\nboxes contain limited quantity hazmat and lithium batteries of different types and\nconfigurations, along with retail items that are not regulated in transportation (e.g., pillows,\ntowels). The limited quantity hazmat is a mix of different hazard classes. The boxes are packaged\nat the retail company's stores and are first transported to the retail company's distribution\ncenter and then transported by a third-party dedicated carrier to my client's warehouse and\ndistribution center. The bill of ladings that accompany the retail company's packages contain no\nindication that hazardous materials may be present inside the boxes; the BOLs identify the\ncontents as \"dry goods.\" The BOLs show the warehouse and distribution center's address as the\nfinal destination with the retail company as the intended recipient.\nThe retail company's packages are not marked or labeled in any way upon arrival at my client's\nwarehousing and distribution center. The retail company asserts that marking on such packaging\nis not required because the packages comply with 49 CFR 173.156(b)(1). The hazardous\nmaterials inside the unmarked boxes are loose and are often of mixed hazard classes. In many\ncases, liquids are not upright or placed in such a way as to prevent spillage. The contents of\nAlston & Bird LLP\nwww.alston.com\nAtlanta | Beijing | Brussels | Charlotte | Dallas | Fort Worth | London | Los Angeles | New York | Raleigh | San Francisco | Silicon Valley | Washington, D.C.\n\n<<>>\n\nLetter of Interpretation\nMay 27, 2022\nPage 2\nthese boxes include items sold in retail stores containing flammable liquids, flammable solids,\naerosols, and lithium battery-containing equipment. At times, fully-regulated hazmat like\nlighters and fireworks and/or lithium battery containing equipment have been mixed in with the\nlimited quantity hazmat. Photos of representative inbound shipments are attached.\nThe inbound boxes are opened and unpacked after the dedicated third-party carrier leaves the\nwarehouse and distribution center. Currently, the items in these boxes that are known or\nsuspected to be regulated in transportation are quarantined and not intended for future\nshipment at this time. My client understands that undeclared hazmat discovered in these\ninbound boxes would not need to be reported if the undeclared hazmat is discovered after the\nthird-party carrier departs and the goods are not intended for future movement. See, e.g., LOI #\n05-0011.\nHowever, my client anticipates providing a shipping service for the retail customer in the future\nand is currently attempting to design that service in compliance with the HMRs. My client’s\nshipping service is anticipated to involve the unpacking, segregation and classification of goods\nby hazard class, and properly packaging the goods for shipment (including any required marking\nor labeling). The goods, after receipt and processing, may be temporarily stored in the\nwarehouse and distribution center, and will then be shipped from my client’s warehouse and\ndistribution center through one of three streams, as directed by the retail company: (1)\nproducts sold directly to consumer on ebay-like platform; (2) products sold to another business\nfor resale (e.g., B2B); or (3) products returned to manufacturer/supplier. To ensure my client’s\nshipping service complies with the HMRs, we would appreciate your response to the following\nthree questions:\nQ1: Is my client, the warehouse/distribution center, performing pre-transportation functions or\nstorage incidental to movement when it opens, segregates, and classifies the items in the retail\nshipper’s inbound boxes when those goods are intended for future transportation? Would my\nclient be responsible for reporting undeclared hazmat if discovered during its performance of\nthose pre-transportation functions and/or storage incidental to movement?\nQ2: Do the inbound boxes of mixed, loose goods (as depicted in the exemplar photographs\nattached to this letter) meet the definition of “unitized” in 49 CFR 173.156(b)(1)?\nQ3: Are limited quantity hazmat shipped pursuant to 49 CFR 173.156(b)(1) considered an\n“undeclared hazardous material” under 49 CFR 171.8 if the package does not comply with the\npackaging requirements in 49 CFR 173.156(b), 173.24, or 173.24a and does not bear a limited\nquantity mark?\nSincerely,\nMeaghan G. Boyd\nLEGAL02/41661802v2\n\n<<>>\n\nBaker\n22-0053\nFrom: Foster, Glenn (PHMSA)\nTo: Subject: Date: Dodd, Alice (PHMSA); Hillman, Kenetha CTR (PHMSA)\nFW: Request for Letter of Interpretation\nMonday, June 6, 2022 12:28:44 PM\nAttachments: LOI Photos.pdf\n2022_05_27_Letter of Interpretation.pdf\nAlice and Kenetha,\nDid anyone forward this incoming request for LOI to either one of you?\nThanks,\nGlenn\nFrom: Schoonover, William (PHMSA) \nSent: Tuesday, May 31, 2022 8:50 AM\nTo: Kelley, Shane (PHMSA) ; Foster, Glenn (PHMSA)\n; DerKinderen, Dirk (PHMSA) \nSubject: FW: Request for Letter of Interpretation\nFor your handling…\nBill\nWilliam S. Schoonover\nAssociate Administrator, Office of Hazardous Materials Safety\nUSDOT, PHMSA\n1200 New Jersey Ave, SE, Washington, DC 20590\nOffice: 202.366.0656 ◊ Mobile: 202.495.9510\nFrom: Boyd, Meaghan \nSent: Friday, May 27, 2022 5:32 PM\nTo: Schoonover, William (PHMSA) \nSubject: Request for Letter of Interpretation\nCAUTION: This email originated from outside of the Department of Transportation (DOT). Do\nnot click on links or open attachments unless you recognize the sender and know the content\nis safe.\nMr. Schoonover,\nPlease see the attached letter requesting an interpretation from your office.\nThank you in advance for your attention to this request.\nKind regards,\n\n<<>>\n\nMeaghan\nMeaghan G. Boyd\nALSTON & BIRD\nPartner and Co-Practice Group Leader, Environmental, Land Use, and Natural Resources\n1201 W. Peachtree Street | Atlanta, GA 30309\nmeaghan.boyd@alston.com | 404.881.7245\nNOTICE: This e-mail message and all attachments may contain legally privileged and\nconfidential information intended solely for the use of the addressee. If you are not the\nintended recipient, you are hereby notified that you may not read, copy, distribute or\notherwise use this message or its attachments. If you have received this message in error,\nplease notify the sender by email and delete all copies of the message immediately.\n\n<<>>\n\nIncoming pallets, showing as-delivered boxes after shrink wrap removed\nLEGAL02/41730001v1\n\n<<>>\n\nClose-up view of inside of one box on pallet shown above. This box included hand sanitizer mixed with\nsoaps, liquids, and other products.\nLEGAL02/41730001v1\n\n<<>>\n\nEasy Off not upright in package, mixed with other items\nLEGAL02/41730001v1\n\n<<>>\n\nLithium battery containing items, without any marking, mixed with other goods.\nLEGAL02/41730001v1\n\n<<>>\n\nLysol disinfectant spray not upright, mixed in with other products\nLEGAL02/41730001v1","truncated":false,"body_characters":15526}