{"operation":"document","citation":"23-0005","title":"Steve Laughlin — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2023-04-19","effective_on":null,"summary":"23-0005 concerning 171.2, 172.101, 172.202, 172.402, 173.128, 173.22, 173.225.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-23-0005.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-23-0005.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-23-0005","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/77521/230005.pdf","body":"<<<PAGE 1>>>\n\nApril 19, 2023\nSteve Laughlin\nRegulatory & Waste Specialist\n519 Hillcrest Lane\nLindenhurst, IL 60046\nReference No. 23-0005\nDear Mr. Laughlin:\nThis letter is in response to your January 19, 2023, email and subsequent discussion with a\nmember of my staff requesting clarification of the Hazardous Materials Regulations (HMR; 49\nCFR Parts 171-180) applicable to the classification of hazardous materials and assignment of\nsubsidiary hazards to existing entries on the § 172.101 Hazardous Materials Table (HMT).\nWe have paraphrased and answered your questions as follows:\nQ1. You ask whether it is permissible for a shipper to classify a material differently than\nindicated on the manufacturer’s safety data sheet (SDS) if the shipper knows that the SDS\nclassification is incorrect.\nA1. The answer is yes. In accordance with § 173.22, it is the shipper’s responsibility to\nclassify a hazardous material. As provided in § 171.2(b), each offeror—i.e., the shipper—\nmay rely on information provided by another offeror, unless that offeror knows or, a\nreasonable person, acting in the circumstances and exercising reasonable care, would\nhave knowledge that the information provided by another offeror is incorrect. If an\nofferor has knowledge that the information provided by another entity regarding the\nclassification of a hazardous material is incorrect, they must accurately classify the\nmaterial prior to offering it for transportation.\nQ2. You ask whether a shipper is required to label a package with a subsidiary hazard label if\nthe shipper knows that the material meets that subsidiary hazard classification, even if\nthat hazard is not included in the § 172.101 HMT entry for the material.\nA2. The answer is yes. It is the shipper's responsibility to determine if a material has\nsubsidiary hazards that require subsidiary hazard labels. As provided in § 172.101(g),\nprovisions in § 172.402 may require that a label other than that specified in Column 6 of\nthe HMT be affixed to the package in addition to that specified in Column 6.\nCONCUR:\nROUTING\nPHH-11\nINITIALS\nEP\nDATE\n2/8/2023\nROUTING\nPHH-11\nINITIALS\nDDK\nDATE\n2/9/2023\nROUTING\nPHH-10\nINITIALS\nMBN w/\nedits\nDATE\n2/10/2023\nROUTING\nPHH-21\nINITIALS\nAWD\nDATE\n3/13/2023\nROUTING\nPHH-21\nINITIALS\nRJV\nDATE\n3/15/2023\nROUTING\nField Ops\nINITIALS\nKM (via\nemail)\nDATE\n3/29/2023\nROUTING\nPHC-10\nINITIALS\nBSB\nDATE\n4/14/23\n\n<<<PAGE 2>>>\n\nPlease note there are circumstances where it is impermissible to modify an entry with\nadditional hazards, including materials classified by an approval from the Associate\nAdministrator and entries with a “+” sign in Column 1 of the HMT, unless authorized by\nthe Associate Administrator (see § 172.101(b)(1)).\nQ3. You ask whether the shipper's responsibility to determine if a material has additional\nsubsidiary hazards applies to all hazardous materials. In particular, you ask whether a\nDivision 5.2 organic peroxide that does not have “Note 13” entered in association with\nthe technical name in the § 173.225 Table 1 to paragraph (c) – the Organic Peroxide\nTable – may be labeled with a Class 8 subsidiary hazard label if the shipper knows that\nthe material meets the definition of a Class 8 corrosive material.\nA3. The answer is yes, unless the material has been classified and approved for transportation\nby the Associate Administrator in accordance with the procedures of § 173.128. If a\nshipper has knowledge that an organic peroxide listed by technical name in the § 173.225\nOrganic Peroxide Table meets the definition of a Class 8 corrosive material, they must\naffix a Class 8 label and describe the material accordingly, even if the Organic Peroxide\nTable entry does not include “Note 13.”\nIf a shipper has knowledge that an organic peroxide material approved by the Associate\nAdministrator meets the definition of a Class 8 corrosive material—but the classification\napproval document does not list this hazard—the person should submit the information to\nthe Associate Administrator for review and evaluation.\nQ4. You ask whether a shipper is required to provide supporting evidence of additional\nsubsidiary hazards not included in the § 172.101 HMT entry to accompany the shipment.\nAnd after transportation is completed, you further ask whether a shipper is required to\nprovide the supporting evidence to an authorized official of a Federal, State, or local\ngovernment agency upon request.\nA4. The HMR do not require that records of classification determination be made available\nduring transportation. However, providing supporting evidence—during shipment—of a\nclassification determination in this circumstance may reduce confusion and the likelihood\nof a frustrated shipment. Maintaining easily accessible copies of such records is\nencouraged to promote clarity. Please note that an agency action, such as the Associate\nAdministrator’s classification approval of an explosive, self-reactive, or organic peroxide\nmaterial may require that data associated with the classification of the material be\nretained by the manufacturer, test laboratory, or other party.\nLastly, as part of an enforcement action, a shipper may be required to provide the records\nof classification determination be made available to an authorized official of a Federal,\nState, or local government agency upon request. Please see 49 CFR Part 109 for\nprocedural requirements that PHMSA investigators will follow in an investigation.\nCONCUR:\nROUTING\nPHC10\nINITIALS\nAG\nDATE\n4/14/23\nROUTING\nINITIALS\nDATE\nROUTING\nINITIALS\nDATE\nROUTING\nINITIALS\nDATE\nROUTING\nINITIALS\nDATE\nROUTING\nINITIALS\nDATE\nROUTING\nINITIALS\nDATE\n\n<<<PAGE 3>>>\n\nCONCUR:\nROUTING\nPHC10\nQ5. You ask whether a shipper is required to include a subsidiary hazard in the basic\ndescription on the hazardous materials shipping paper as required in § 172.202(a)(3).\nINITIALS\nAG\nDATE\n4/14/23\nA5. The answer is yes. A hazardous materials shipping paper entry for a package containing a\nmaterial with a subsidiary hazard must display the hazard class or division number in\nparentheses after the primary hazard class or division in the basic description. This\nincludes circumstances in which the shipper has modified an existing HMT entry to\naccount for additional subsidiary hazards.\nROUTING\nINITIALS\nDATE\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nROUTING\nINITIALS\nDATE\nDirk Der Kinderen\nChief, Standards Development Branch\nStandards and Rulemaking Division\nROUTING\nINITIALS\nDATE\nROUTING\nINITIALS\nDATE\nROUTING\nINITIALS\nDATE\nROUTING\nINITIALS\nDATE\n\n<<<PAGE 4>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nApril 19, 2023\nSteve Laughlin\nRegulatory & Waste Specialist\n519 Hillcrest Lane\nLindenhurst, IL 60046\nReference No. 23-0005\nDear Mr. Laughlin:\nThis letter is in response to your January 19, 2023, email and subsequent discussion with a\nmember of my staff requesting clarification of the Hazardous Materials Regulations (HMR; 49\nCFR Parts 171-180) applicable to the classification of hazardous materials and assignment of\nsubsidiary hazards to existing entries on the § 172.101 Hazardous Materials Table (HMT).\nWe have paraphrased and answered your questions as follows:\nQ1. You ask whether it is permissible for a shipper to classify a material differently than\nindicated on the manufacturer’s safety data sheet (SDS) if the shipper knows that the SDS\nclassification is incorrect.\nA1. The answer is yes. In accordance with § 173.22, it is the shipper’s responsibility to\nclassify a hazardous material. As provided in § 171.2(b), each offeror—i.e., the shipper—\nmay rely on information provided by another offeror, unless that offeror knows or, a\nreasonable person, acting in the circumstances and exercising reasonable care, would\nhave knowledge that the information provided by another offeror is incorrect. If an\nofferor has knowledge that the information provided by another entity regarding the\nclassification of a hazardous material is incorrect, they must accurately classify the\nmaterial prior to offering it for transportation.\nQ2. You ask whether a shipper is required to label a package with a subsidiary hazard label if\nthe shipper knows that the material meets that subsidiary hazard classification, even if\nthat hazard is not included in the § 172.101 HMT entry for the material.\nA2. The answer is yes. It is the shipper's responsibility to determine if a material has\nsubsidiary hazards that require subsidiary hazard labels. As provided in § 172.101(g),\nprovisions in § 172.402 may require that a label other than that specified in Column 6 of\nthe HMT be affixed to the package in addition to that specified in Column 6.\n\n<<<PAGE 5>>>\n\nPlease note there are circumstances where it is impermissible to modify an entry with\nadditional hazards, including materials classified by an approval from the Associate\nAdministrator and entries with a “+” sign in Column 1 of the HMT, unless authorized by\nthe Associate Administrator (see § 172.101(b)(1)).\nQ3. You ask whether the shipper's responsibility to determine if a material has additional\nsubsidiary hazards applies to all hazardous materials. In particular, you ask whether a\nDivision 5.2 organic peroxide that does not have “Note 13” entered in association with\nthe technical name in the § 173.225 Table 1 to paragraph (c) – the Organic Peroxide\nTable – may be labeled with a Class 8 subsidiary hazard label if the shipper knows that\nthe material meets the definition of a Class 8 corrosive material.\nA3. The answer is yes, unless the material has been classified and approved for transportation\nby the Associate Administrator in accordance with the procedures of § 173.128. If a\nshipper has knowledge that an organic peroxide listed by technical name in the § 173.225\nOrganic Peroxide Table meets the definition of a Class 8 corrosive material, they must\naffix a Class 8 label and describe the material accordingly, even if the Organic Peroxide\nTable entry does not include “Note 13.”\nIf a shipper has knowledge that an organic peroxide material approved by the Associate\nAdministrator meets the definition of a Class 8 corrosive material—but the classification\napproval document does not list this hazard—the person should submit the information to\nthe Associate Administrator for review and evaluation.\nQ4. You ask whether a shipper is required to provide supporting evidence of additional\nsubsidiary hazards not included in the § 172.101 HMT entry to accompany the shipment.\nAnd after transportation is completed, you further ask whether a shipper is required to\nprovide the supporting evidence to an authorized official of a Federal, State, or local\ngovernment agency upon request.\nA4. The HMR do not require that records of classification determination be made available\nduring transportation. However, providing supporting evidence—during shipment—of a\nclassification determination in this circumstance may reduce confusion and the likelihood\nof a frustrated shipment. Maintaining easily accessible copies of such records is\nencouraged to promote clarity. Please note that an agency action, such as the Associate\nAdministrator’s classification approval of an explosive, self-reactive, or organic peroxide\nmaterial may require that data associated with the classification of the material be\nretained by the manufacturer, test laboratory, or other party.\nLastly, as part of an enforcement action, a shipper may be required to provide the records\nof classification determination to an authorized official of a Federal, State, or local\ngovernment agency upon request. Please see 49 CFR Part 109 for procedural\nrequirements that PHMSA investigators will follow in an investigation.\n\n<<<PAGE 6>>>\n\nQ5. You ask whether a shipper is required to include a subsidiary hazard in the basic\ndescription on the hazardous materials shipping paper as required in § 172.202(a)(3).\nA5. The answer is yes. A hazardous materials shipping paper entry for a package containing a\nmaterial with a subsidiary hazard must display the hazard class or division number in\nparentheses after the primary hazard class or division in the basic description. This\nincludes circumstances in which the shipper has modified an existing HMT entry to\naccount for additional subsidiary hazards.\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 7>>>\n\nPatrick\n23-0005\nFrom: INFOCNTR (PHMSA)\nTo: Dodd, Alice (PHMSA)\nCc: Hazmat Interps\nSubject: FW: Request for interpretation - Altering HMT entries\nDate: Tuesday, January 24, 2023 1:46:47 PM\nAttachments: LOI Altering DOT Descriptions .docx\nHi Alice,\nPlease see the attached interpretation request.\nAdditionally, the requestor’s physical address is:\n519 Hillcrest Lane\nLindenhurst, IL 60046\nPlease let me know if you need anything else.\nRegards,\n-Breanna\nFrom: Steve Laughlin <steve@curaes.com>\nSent: Thursday, January 19, 2023 10:07 AM\nTo: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>\nSubject: Request for interpretation - Altering HMT entries\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.\nDear PHMSA,\nWould appreciate an interpretation on the following\nSteve Laughlin\nRegulatory & Waste Specialist\n224-381-3943\nsteve@curaes.com\n\n<<<PAGE 8>>>\n\nJanuary 7, 2023\nU. S. Department of Transportation\nPipeline and Hazardous Materials Safety Administration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nDear Sir/Madame,\nIs it permissible to change or add information to entries found in the Hazardous Materials Table?\nSpecifically, we encountered a situation where a shipper added a secondary hazard of corrosivity\nto the entry in the table for UN3109, Organic peroxide, type F liquid, 5.2\nAdditionally, we have come across several products that included packing groups to 5.2\ndesignated materials where none exist in the hazardous materials table.\nPlease advise.\nSteve Laughlin","truncated":false,"body_characters":14123}