{"operation":"document","citation":"22-0123","title":"R@K Testing — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2023-01-25","effective_on":null,"summary":"22-0123 response to R@K Testing concerning 171.2, 171.8, 178.503.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0123.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0123.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0123","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/77306/220123.pdf","body":"<<<PAGE 1>>>\n\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nJanuary 25, 2023\nRich Kovaleski\nR@K Testing\n7635 Supreme Ave., NW\nNorth Canton, OH 44720\nReference No. 22-0123\nDear Mr. Kovaleski:\nThis letter is in response to your November 1, 2022, email requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the legal liability\nof shipping hazardous material (hazmat) in a non-bulk performance-oriented UN specification\npackaging. In your email, you state that it is your understanding that the ultimate responsibility\nfor a non-bulk UN hazmat package is with the hazardous materials shipper and that you further\nunderstand that the shipper is the entity that fills, closes, and marks the package, and then offers\nthe package into transportation. We note that your incoming request referred to a “hazmat\nmanufacturer” which we understand to have meant a hazmat shipper. Further, the answers\nprovided herein are associated with liability in regard to non-compliance with the HMR.\nYour understanding is not entirely correct. Liability associated with a non-compliant packaging\nor package, or a package failure, is determined on a case-by-case basis. Placement of the name of\nthe packaging manufacturer or approval agency certifying compliance with a UN packaging\nspecification standard does not necessarily assign sole responsibility of a completed hazmat\npackage to that entity. All persons engaged in performing covered functions under the HMR\nrelated to the completed package would be considered. With respect to a hazmat package, each\nperson who offers—i.e., each shipper of—such a package for transportation in commerce must\nassure that the package remains in condition for shipment until it is in the possession of the\ncarrier and no carrier may accept such a package unless it is in condition for shipment. See\n§§ 171.2(e), (i), and (j). With respect to a packaging, a manufacturer of a packaging subject to\nthe requirements Part 178 of the HMR is primarily responsible for compliance with the\nrequirements of Part 178. However, any person who performs a function prescribed in Part 178\nmust perform that function in accordance with requirements. See § 178.2(a)(2).\nWe have paraphrased and answered your questions as follows:\nQ1. You ask whether there is a difference in legal liability based on whose name and address\n(or M number) appears as part of the UN specification marking (see §§ 178.3 and\n178.503) that is required for the manufacturer or the person certifying compliance with a\nUN standard on a package.\n\n<<<PAGE 2>>>\n\nA1. The answer is it depends. As defined in § 171.8, “packaging” means a receptacle and any\nother components or materials necessary for the receptacle to perform its containment\nfunction in conformance with the minimum packing requirements of the HMR and\n“package” means a packaging plus its contents. Further, as defined in § 178.2(e), a\n“manufacturer” means the person whose name and address or symbol appears as part of\nthe required specification markings, or for a packaging marked with the symbol of an\napproval agency, the person on whose behalf the approval agency certifies the packaging.\nThus, the manufacturer or approval agency that is included on that marking assumes a\ncertain level of liability with respect to the packaging; however, that does not mean that\nother persons cannot also be held liable, such as manufacturers of component parts.\nFurthermore, with respect to a package, more than one individual or entity may be\ndeemed liable with regards to non-compliant packagings or packages, or a package\nfailure. That liability is determined on a case-by-case basis.\nQ2. You ask whether there is a difference in liability based on whether the name and address\nprovided in the UN specification string belongs to the packaging manufacturer, third\nparty testing lab, hazmat manufacturer/shipper, self-certified testing lab, or packaging\ncomponent manufacturer.\nA2. The answer is it depends. Also, note that only the manufacturer or an approval agency\ncertifying compliance of a packaging may be included in the specification marking.\nLiability may be assigned to the entity whose name and address appears as part of the UN\nspecification marking because they are certifying the packaging complies with the UN\nstandard and testing for the packaging. However, PHMSA also has the authority under\nthe HMR to determine liability of persons or companies other than those whose name\nappears on the packaging (i.e., any persons engaged in performing covered functions\nunder the HMR related to the packaging).\nQ3. You ask whether a packaging manufacturer would have more legal liability (i.e.,\nresponsibility) for a UN packaging if they mark the packaging with their M number, or if\ntheir liability would be limited only to the part of the packaging that they can control\n(e.g., the outer box, paper combinations, manufactures joint, etc.).\nA3. See answers A1 and A2.\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<<<PAGE 3>>>\n\nCasey\n22-0123\nR@K Testing, uc\nTo: Standards & Rulemaking Division PHMSA,\nAttn: PHH-10, U.S. DOT, East Building, 1200 New Jersey Ave. SE\nWashington, DC 20590-0001\nDate: 11-1-22\nRe: Marking and Responsibility of UN Packaging\nOur question is there a DOT legal liability difference based on whose name and address or M\nnumber that is printed in the UN code on a hazmat package? Our understanding that the actual\nhazmat manufacture is the ultimate responsible party for the UN hazmat package. We\nunderstand that the hazmat manufacture as defined as the DOT is the one that fills the hazmat\ninto the package, closes the package, marks the package, and offers the package for\ntransportation. Do you agree?\nBased on the five marking scenarios please give us the legal liability differences:\n1. UN 4G/Y20.5/S/22/USA/M5466 (box manufacture).\n2. UN 4G/Y20.5/S/22/USA /XYZ Lithium Battery Co. (hazmat maker and shipper).\n3.. UN 4G/Y20.5/S/22/USA /AA+5677 (3*° party testing lab).\n4. UN 4G/Y20.5/S/22/USA /ABC Fulfillment Inc. (UN Hazmat box kit supplier) This\ncompany buys all the hazmat packaging components (boxes, partitions, bags, etc.),\nwarehouses and ships the components as needed to the hazmat maker and shipper.\n5. UN 4G/Y20.5/S/22/USA/RAK Testing, LLC (self-certified testing lab).\nFor instance, does the box manufacture scenario #I have more legal liability (responsibility) for\nthis UN package if they tse their M number? Or is their liability limited only to the part of this\npackage that they can control, i.e., the outer box, paper combinations, manufactures joint etc. In\nscenario #5 we use our name and address in the UN code does this make our testing company\nresponsible for this UN package or are we just responsible for our part of this package? Which is\nto properly test and report on this UN package.\nPlease respond in writing with réferences to the 49 CFR sections that pertain to these questions.\nPlease email your response to raktesting@gmail.com.\nPlease contact: Rich Kovaleski with any questions concerning this testing:\nR@K Testing 7635 Supreme Ave NW North Canton, OH 44720, Cell: 740.624.1314\n!..\"\n\n<<<PAGE 4>>>\n\nFrom: DerKinderen, Dirk (PHMSA)\nTo: Hazmat Interps\nSubject: FW: R@K Testing Correspondence\nDate: Monday, November 14, 2022 10:03:13 AM\nAttachments: EO - Kelley(R@KTesting) 14Nov22.pdf\nAlice,\nPlease log the attached into the system as an interp request.\nThanks,\nDirk Der Kinderen\nChief, Standards Development Branch\nPHMSA\n202-366-4460 (desk)\n202-365-4684 (cell)\nFrom: Kelley, Shane (PHMSA) <shane.kelley@dot.gov>\nSent: Monday, November 14, 2022 9:53 AM\nTo: DerKinderen, Dirk (PHMSA) <Dirk.DerKinderen@dot.gov>; Nickels, Matthew (PHMSA)\n<Matthew.Nickels@dot.gov>\nSubject: Fwd: R@K Testing Correspondence\nCan we get this logged?\nFrom: Lisak, Frank (PHMSA) <frank.lisak@dot.gov>\nSent: Monday, November 14, 2022 9:01:20 AM\nTo: Kelley, Shane (PHMSA) <shane.kelley@dot.gov>\nSubject: R@K Testing Correspondence\nHi, Shane:\nThe attachment is for your review.\nFrank","truncated":false,"body_characters":8235}