{"operation":"document","citation":"23-0068","title":"UL Solutions — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2023-10-16","effective_on":null,"summary":"23-0068 response to UL Solutions concerning 171.8, 172.101, 173.22, 173.306.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-23-0068.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-23-0068.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-23-0068","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/78051/230068.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nOctober 16, 2023\nKevin Skerrett\nSenior Regulatory Specialist\nUL Solutions\n77 Clearbrook Drive\nRochester, NY 14609\nReference No. 23-0068\nDear Mr. Skerrett:\nThis letter is in response to your July 21, 2023, email requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to shipping a gaseous hazardous\nmaterial in a cartridge that also contains a small amount of liquid content and whether to classify\nand describe it as “UN2037, Receptacles, small, containing gas or gas cartridges (non-\nflammable) without release device, not refillable and not exceeding 1 L capacity, 2.2” or as\n“UN3500, Chemical under pressure, n.o.s., 2.2.” Specifically, you describe a cartridge of 1 fluid\noz. capacity with 1% of content being a non-regulated irritant liquid while the remainder of the\ncartridge is filled with a Division 2.2 gas you term a propellant. You state that the cartridge is\nintended to be installed in a separate device which—when activated—emits the gas along with\nthe small amount of the non-regulated irritant liquid. Your concerns are twofold—i.e., whether\nthis material is appropriately classified and described when using “UN2037” and whether\ndownstream users can reship by any mode of transportation and internationally as “UN2037.”\nWe have paraphrased and answered your questions as follows:\nQ1. You ask whether it is acceptable to classify and describe this hazardous material in a\ncartridge as “UN2037” or is it more appropriately classified and described as “UN3500.”\nFurther, if it is more appropriate to use “UN3500,” is classifying and describing the\nmaterial as “UN2037” considered a violation of the HMR.\nA1. In accordance with § 173.22 of the HMR, it is the shipper’s responsibility to properly\nclassify and describe a hazardous material as this Office does not perform that function.\nHowever, it is the opinion of this Office that based on the information you have provided,\nwe agree that the appropriate classification and description would be “UN2037” if the\ncartridge does not contain a release device and the material in the cartridge is not an\naerosol as defined in § 171.8.\n\n<<<PAGE 2>>>\n\nQ2. You ask whether your understanding is correct that there are no provisions that allow for\n“UN3500” material to be contained in a non-specification packaging and that there is no\nsmall quantity relief provision for “UN3500” material from the HMR.\nA2. Your understanding is correct. There are no exceptions assigned to “UN3500” in the\nHazardous Materials Table (HMT) in § 172.101 that are comparable to the exceptions\nprovided in § 173.306 and assigned to other gas entries in the HMT. Additionally, there\nare no provisions for “UN3500” that would allow the use of a non-specification\npackaging.\nQ3. You ask if the cartridge cannot be classified and described as “UN2037” and if\nclassifying it as “UN3500” does not allow for the use of a non-specification packaging,\nwould a person need to apply for a special permit to ship the cartridge and its contents.\nA3. See answer A1.\nPlease note that a downstream user who receives a package containing “UN2037” may reship\nthis material domestically and internationally provided a person reships the material in\naccordance with the conditions found in the HMT.\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\nYul Baker\n23-0068\nFrom: Dodd, Alice (PHMSA)\nTo: Subject: Date: Jones, Jessie Jane CTR (PHMSA)\nFW: Question about UN2037 containing liquid vs UN3500 - Request for letter of interpretation\nMonday, July 24, 2023 11:00:13 AM\nMorning Jessie,\nOne more for you.\nFrom: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>\nSent: Friday, July 21, 2023 5:01 PM\nTo: Dodd, Alice (PHMSA) <Alice.Dodd@dot.gov>\nCc: Hazmat Interps <hazmatinterps@dot.gov>\nSubject: FW: Question about UN2037 containing liquid vs UN3500 - Request for letter of\ninterpretation\nHi Alice,\nPlease see the below interpretation request.\nLet us know if you need anything.\nRegards,\n-Breanna\nFrom: Skerrett, Kevin <Kevin.Skerrett@ul.com>\nSent: Friday, July 21, 2023 4:19 PM\nTo: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>\nSubject: FW: Question about UN2037 containing liquid vs UN3500 - Request for letter of\ninterpretation\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.\nHello –\nAfter discussion with Brianna today, I would like to request a formal letter of interpretation\naddressing the questions below.\nI will separately pass along to the supplier the information about obtaining a Special Permit in case\nthey would like to pursue that route in the meantime.\nThank you so much for your time and assistance in this matter!\nKevin Skerrett, DGSA\nSenior Regulatory Specialist\n\n<<<PAGE 4>>>\n\nUL Solutions\nT: +1.518.640.9287\nUL.com/Solutions\nFrom: Skerrett, Kevin\nSent: Thursday, July 13, 2023 13:00\nTo: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>\nSubject: FW: Question about UN2037 containing liquid vs UN3500 - continued\nHello –\nThis is a continuation of the issue raised in the note attached below, based on responses from the\nsupplier of the product, and additional consideration of the transport provisions for UN3500.\nOn 11/14/2023 about 11:00 EST I received a phone response from Brianna indicating that this issue\nhad been debated by several experts at PHMSA.\nTheir consensus was that UN2037 is intended for gases only, and that this product, intended to eject\nthe small amount of liquid present, was most appropriately described as UN3500.\nI passed that information back to the supplier of the product, and recently received from them\nstrong disagreement.\nThey indicated that a third-party consultant had confirmed the classification as UN2037 for them in\nwriting.\nThey ship via the US Postal Service (USPS) and have an exception in writing from some USPS\nrequirements, based on UN2037.\nThey also contacted the HMIC themselves and were told that UN2037 was acceptable, but I do not\nknow what information or description they provided.\nThey are asking for written proof that they should be using UN3500 and not UN2037 – but I did not\nrequest a letter of interpretation last October.\nMy concern is not as much whether they can ship as UN2037 via USPS, but rather whether this is\ndefendable for a downstream user to reship by any mode and internationally as UN2037.\nThis is a cartridge that is about 1 fluid oz capacity, with about 1% non-regulated irritant liquid with a\n2.2 gas propellant, in a non-aerosol container that I believe is not a DOT-specification container.\nWith each actuation, the device (once the cartridge is installed) is intended to emit a puff of gas (the\npropellant) as well as a small quantity of the irritant (the liquid).\nQUESTION 1: Is it acceptable to classify this as UN2037 but preferred to use UN3500, or could use of\nUN2037 for this purpose be a violation?\n\n<<<PAGE 5>>>\n\nUN3163 (which would apply to the propellant alone), UN2037, and UN1950 (if this WAS an aerosol)\nare all eligible for the exceptions available at 173.306 – but UN3500 is not.\nThis would include the Limited Quantity exceptions at 173.306(i) (via 173.306(a)(1), being < 1 fl. oz.),\nwhich include the use of a non-specification container.\nThis could also include the exception for a 2.2 gas in a container of < 50ml capacity at 173.306(j).\nUN3500 is not eligible for the 173.306 exceptions.\nUN3500 specifies 173.335 as the source of packaging requirements, which includes reference to\n173.301 – I do not find in either and allowance for Limited Quantity exceptions, or more importantly,\nany provision for non-specification containers.\nQUESTION 2: Am I correct in reading that UN3500 has no provision for allowing non-specification\ncontainers, and no small-container threshold for relief from requirements?\nQUESTION 3: If UN2037 is not allowed, and UN3500 does not allow a non-specification container, I\nassume a Special Permit (or Competent Authority approval for international shipment) would be\nneeded.\nWould the preferred approach for PHMSA be:\nA) A Special Permit as UN2037 allowing the liquid contents, which would then allow 173.306\nexceptions?\nB) A Special Permit as UN3500 allowing the exceptions at 173.306 (including the use of a non-\nspecification container).\nIf UN2037 is allowed, then this is a moot question.\nIs there precedence for such a Special Permit? I did not find one in a search.\nSince this is an issue of strong concern for the supplier, I would appreciate an informal reply, but I\nalso request a formal letter of interpretation, since I expect to have similar issues arise in the future.\nAs always, thank you very much for your assistance!\nKevin Skerrett, DGSA\nSenior Regulatory Specialist\nUL Solutions\nT: +1.518.640.9287\nUL.com/Solutions\nFrom: Skerrett, Kevin\nSent: Friday, October 28, 2022 16:49\nTo: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>\nSubject: Question about UN2037 containing liquid vs UN3500\n\n<<<PAGE 6>>>\n\nHello –\nI have a question about whether a product should be UN2037 or UN3500.\nThe product is in a small container (about 1 fl oz) that has no release device – so it is not an aerosol.\nIt contains a non-flammable gas classified as 2.2.\nIt also contains a small amount (about 1%) of an oil that is an irritant but is not classified as\nhazardous under the HMR.\nThe container is designed to be connected to a separate device that IS intended to spray a puff of\nthe gas, which is intended to contain a small amount of the liquid.\nIt is currently classified as UN2037 Receptacles, small, containing gas, 2.2 which, because of the\nvolume, would be eligible for the 50 ml exception at {173.306(j)}.\nMy question is, does the small amount of liquid (that is intended to be ultimately ejected by the\nseparate spray device) preclude the use of UN2037?\nOr would this be allowed due to the liquid being in such small quantity?\nOr is it allowed due to the small size of the receptacle?\nI believe this used to be allowed for UN2037 before UN3500 was instituted.\nI don’t see any threshold limits, or an indication that UN3500 is intended for larger containers.\nThe fact that UN3500 does not allow the 50ml exception at {173.306(j)} is a concern.\nI noticed that in GHS Ver.9, the NOTE at 2.3.2.1 indicates “Chemicals under pressure typically\ncontain 50 % or more by mass of liquids or solids whereas mixtures\ncontaining more than 50 % gases are typically considered as gases under pressure.”\nBut I do not find any such reference in 173.335 or in SP-362, or in the equivalent references in the\nUNMR 22nd\n.\nIn the transport wording, it appears that no such limit is specified, although the references in\n{173.335} to “cylinders” appears to indicate UN3500 is intended for larger containers than the 1 oz\ninvolved here.\nThank you for any clarification you can provide!\nKevin Skerrett, DGSA\nSenior Regulatory Specialist\nUL Solutions\nT: +1.518.640.9287\nUL.com/Solutions\n\n<<<PAGE 7>>>\n\nThis e-mail may contain privileged or confidential information. 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