United Parcel Service Airlines — Hazardous Materials Safety Interpretation

Page 1• U.S. Department of Transportation Washington, D.C 400 Seventh Street. S.W. 20590 Research and special Programs Administration Mr. Samuel S. Elkind Air Operations United Parcel Service Airlines MAY 5 1998 8203 National Turnpike Louisville, KY 40213 Dear Mr. Elkind: This is in response to your letter requesting clarification of the package marking statement in 49 CFR 175.30(e)(3), "inside packages comply with prescribed specifications." Specifically, you asked for guidance as to what reasonable steps an aircraft operator must take to establish that a shipment conforms to the requírements of 49 CFR parts 172 and 173. In the case of a DOT-39 specification cylinder, § 173.301(k) requires that a cylinder must be further contained within a strong outside packaging. Furthermore, the outside packaging required under § 173.301(k) is not an "overpack" as defined in § 171.8 and applied in § 173.25. Section 175.30(e) refers only to overpacks, it does not apply to individual packages that are properly prepared for shipment. There is no requirement in the Hazardous Materials Regulations (HMR) to mark the strong outside packaging required by §173.301(k) with the statement "inside packages comply with prescribed specifications." However, we plan to propose that the strong outside packaging conform to the requirements of § 173.25 in a future action. In its acceptance of a shipment of hazardous materials, no carrier may simply rely on the shipper's certification as a basis for its determination that a package conforms to the requirements of the HMR when there are obvious discrepancies. Section 175.30 requires, in part, that an air carrier verify that a hazardous material is authorized for transportation aboard aircraft and the quantity of material in one package when offered for transportation aboard a passenger-carrying or cargo- only aircraft is within the limitations prescribed by § 172.101. For overpacks, a carrier has an obligation to verify the presence of the inside containers comply statement within a reasonable limit. Section 175.3 states that a hazardous material not prepared for shipment in accordance with Subchapter C, including part 173, of the HMR may not be accepted for transportation or transported aboard an aircraft. Therefore, within recognizable limitations and reasonable discretion, a carrier must be able to recognize discrepancies of packaging, shipping papers, labeling, and placarding. I hope this information is helpful. If we can be of further assistance, please contact us. state a mith l Hattie L. Mitchell Chief, Regulatory Review and Reinvention Office of Hazardous Materials Standards#

Page 2Hy 1,3,116 33" Ups United Parcel Service 1400 North Hurstbourne Pkwy.. Louisville, KY 40223 is; (502) 329-3000 December 13, 1996 Mr. Edward Mazzullo Director, Office of Hazardous Materials Standards Research & Special Programs Administration U.S. Department of Transportation - DHM-10 400 Seventh Street. SW Washington, D.C. 20590 - Dear Mr. Mazzullo: In response to ongoing discussions involving UPS and two customers, a major automotive shipper, and one of its suppliers, I write for clarification of the rules governing the statement "Inside containers comply with prescribed specifications." We wish to clarify the application of this statement in a specific situation and to receive guidance on associated requirements as they relate to an accepting carrier's responsibilities under the Hazardous Materials Regulations. referring to a carrier's responsibility, I mean both a motor carrier's and an air carrier's obligations. In seeking to clarify the requirements governing the use of this statement for outer packages containing DOT Specification 39 cylinders, I placed two calls on December 12 to the Hazardous Materials Information Line, speaking first to Theresa Gwynn and later to Diane LaValle. My purpose was to determine whether the "Inside containers comply..." statement is required on packages containing Spec 39 cylinders, and, if so, whether a carrier has an obligation to verify the presence of the statement. Unfortunately, I received partially contradictory answers, so the clarification sought by this letter is especially important. Ms. Gwynn determined, through reference to §173.301(k), that the absence of a specific requirement for that statement on packages containing Spec 39 cylinders means that the statement is not required and added that a carrier would have no obligation to check for it in the first place. Ms. LaValle, by contrast, indicated that she believed the statement is required, and, on hearing Ms. Gwynn's interpretation, sought and received guidance from Hattie Mitchell, that it is RSPA's intent to require the "Inside containers comply.." statement through future rulemaking. On the question of a carrier's obligation to verify the presence of "Inside containers comply..." statement, Mis. LaValle echoed Mis. Gwynn's sentiment that Part 173 requirements are the province of the shipper, not the carrier. This exchange leaves some important questions open. First, does a carrier need to verify that a package correctly states "Inside containers comply..." and, if so, how does a carrier determine that it is required? We note that, in apparent contradiction of Mis. Gwynn's advice, an air carrier is specifically instructed to verify that the "Inside containers comply..." statement appears when it is required [§175.30(e)(3)]. Yet the troubling feature of this Part 175 requirement with regard to gases is that since only some situations clearly appear to require the statement (2P and 2Q cylinders, aerosols, foodstuffs under pressure), only an expert in gases would have the knowledge to apply this requirement, and even then such a person might need to know exactly which USC 3:0#

Page 3Mr. Edward Mazzullo December 13, 1996 Page 2 containers are inside a package. Such information would be unavailable to a carrier, since they are, after all, inside. With respect to the original question -- whether a package containing a Spec 39 cylinder actually requires the statement -- in light of Ms. La Valle's comment about RSPA's intent (as distinct from the actual content of the regulations), I can only comment that the situation is so confusing that neither shippers nor carriers know what is required. Your clarification is needed. My December 12 discussions leave open additional issues, as well. If a carrier need not verify that a package correctly states "Inside containers comply..." then do other shipper's requirements also lie outside a carrier's responsibility? Ms. Gwynn and Ms. LaValle point to the shipper's certification as relieving a carrier from the duty to check such issues. The concept that Part 173 requirements are obligations of the shipper (only) would appear to place the burden of package selection -- up to and including packages tested for the appropriate Packing Group -- strictly on the shipper, and relieve the carrier from any duty to check. It would appear, in other words, to remove any obligation to ensure such features of a shipment as: whether an appropriate package has been used; whether the gross mass of a UN spec package has not been exceeded; whether for air shipments of Classes 4, 5, and 8 in Packing Group III, a package tested to the Packing Group II requirements is used. containers comply... The essential points of this letter are to understand what is required with respect to the "Inside " statement and then to determine if it is true that a motor carrier or air carrier may with confidence assume that Part 173 requirements lie outside its purview when accepting a package. In addition to resolving the marking question, it would be helpful if RSPA could provide guidance as to where a carrier's obligations end. For example, some requirements elsewhere in the regulations appear impossible for a carrier to verify (see, for example, the many alternatives to marking the EX number on a package, in §172.320, in addition to §173.166). If RSPA telephone representatives are suggesting that carriers have no responsibilities in areas that pertain exclusively to shippers, then we need to have that stated clearly in writing. We note with interest that a carrier recently paid a penalty partly due to the absence of an EX number, and yet this, by virtue of its appearance in §173.166, would seem -- according to the guidance offered by RSPA's telephone representatives —- to be only a shipper's responsibility. (See Hazardous Materials Penalty Report, FY95, FAA Case 93CE710034, enclosed.) As this is a matter of ongoing commercial concern, we look forward to your timely reply. If it much for your assistance in this matter. would expedite the process, you may fax your reply to me at (502) 359-1899. Thank you very Sincerely, sumer 1. Ilkind Samuel S. Elkind Air Dangerous Goods Enclosure#

Page 4- = Federal Aviation Administration (Carrier) ADAMS AIR CARGO Accepted and offered for shipment by air HM when that material was required by the HMR; materials were incompatible when packaged not properly classed, described, packaged, labeled, and in the condition $4,000 together (Class 5 and Class 8). [171.2(a), 171.11] Case No. 93WP710639(HM) ADVANCED PLASMA INC Offered paint for transportation by air when the material was not (Shipper) properly classed, described, packaged, marked, labeled, named, $1,000 identified, certified, cushioned, secured, and in the condition requirec by the HIMR; the shipping papers did not include the proper shipping, there was significant release of the HM to the environment. [171.2(a), name, hazard class, iD number, total quantity, proper certification; 172.200(a), 172.202(a)(1), 172.300, 172.301(a), 172.400(a), 173.1 (b), 173.117(a)] Case No. 91S0730260 AIR PRODUCTS JAPAN INC (Shipper) by air when the HM was not properly classed, described, marked, Offered one metal can containing triethyl silicate for transportation $5,000 172.202(a)(2), 172.202(a)(3), 172.202(a)(4), 172.202(b), 172.204(c)(3)] Case No. 94AL700049 172.202(с), 172.204, 172.204 (a) or (c)(1), 172.204(c)(2) AIRBORNE EXPRESS (Carrier) Transported by air HM - paint related materials and a corrosive liquid, of Dangerous Goods, the shipment was still not properly classed nd although the shipment was accompanied by a Shippers Declaratio $10,000 described, packaged, marked, labeled, and in the condition for shipment. [171.2(a), 171.11, ICAO Part 1, Ch.2, para. 2.6.3.3(a), Part Case No. 93WP710575(HM) 4, Ch. 3, para. 3.2.10(b), Part 4, Ch.4, para. 4.1.3(f)] AIRBORNE EXPRESS (Carrier) consisting of radioactive material. [175.31(a), 171.2(a), 171.2(b), Accepted and transported four shipments of HM in air commerce $10,000 171.11(a), 175.3, 175.30(a)(2)] Case No. 93WP750251 EXPRESS INC AIRBORNE Accepted an air bag inflator from Toyota Motor Distributors without (Carrier) the proper documentation in that the shipping papers did not contair $5,500 [171.2(a), 175.20(a), 175.30(a)(2)] Case No. 93CE710034 the EX number, emergency phone number, the proper ID number. ANT SHAH INCORPORATED Offered paint related material, adhesive, and flammable liquid for $10,000 (Shipper) shipping papers did not include the proper shipping name, hazard class, : 1#

Page 5RULES AND REGULATIONS 15979 intent of the DOT regulations would not notice, this amendment provides for at-: Adoption of the amended standard-was. be precluded by this restriction: taching the marking to an ORM pack- proposed in Notice 73-10A (39 FR 43091). 172.306 ($S.173.401 (b) and 177.816; age with a. tag when circumstances pre- The standard has since been revised to HM-103, - $ 172.302(e)) Provides for vent the application of the marking: to remove references to hazard information marking the name and address. of the the package suriace. numbers. Commenters recommended. consignee on the package and specifies Also, the Bureau has added a pro- that a hazardous material classed as & the exceptions to this requirement. One vision authorizing the marking on a "Poisonous compressed gas" be author- commenter recommended that the ex- package containing a material classed as: ized under the provisions of the CGA ceptions be extended to packages in a ORM to be accepted in lieu of the cer- Pamphlet C-7, Appendix A. This recom- freight container. The Bureau agrees, tification required on shipping papers mendation is not adopted because the has made such provisions, and has added in those instances wherein shipping Bureau believes that materials classed as a clarification of the intent of the pro- papers are not required. This was not Poison A must be labeled because of the vision as pertaining to "carload lot, proposed in the notice, but the Bureau special requirements applicable to themi. "truckload lot" and "freight container believes this will accomplish the require- Other comments recommended that load". ments to enhance safety-without re- packages in freight containers and pal 172.308 (§ 173.400(a); HM=103, § 172.- quiring additional paperwork. letized loads be excepted from labeling.. 302 (c)). Provides for the use oi cerval- •. 172.326 (§ 173.401(a) (1) ; EIM-103, requirements. The Bureau believes that abbreviations in markings. No substan- § 172.305(1)) Provides for marking the the hazards must be identified for proper. tive change. proper shipping name on the head and handling and as an assistance to emer- 172.310 (HM-111, § 173.401 (t)). Pro- - one side of each portable tank when ap- gency-response personnel durinc.inol vides for additional markings for pack- propriate or on two opposing sides. The. •dents involving hazardoi ages containing radioactive. materials. Bureau agrees with commenters who transportation. This was 1 This requirement proposed under Docket recommended one marking be placed on preamble to Docket No. EL HM-111, was published after notice and an "operating side" of a portable tank, of Label Exemptions) an LOY- published comment on December 31, and has made such provision. Based on 19.74, and became effective on March 31, one commenter's recommendation, the language from the preamt appropriate: "In the cl 1975 (39 FR 45238). Bureau reconsidered the proposed defi-. sector, even when truckic 172.312 (§ 173.401 (c); HM-103, § 172.- nition of portable tanks and has exclud- volved, it is essential that 302(h)) Provides for markings on cer- ed multi-unit-tank-car-tanks: The most: consistent labeling system tain packages containing liquid hazard- significant change from existing rules in order to assure its maxi ous material to indicate the orientation is the requirement that the marked name piess. Also, there are occi of the inside packaging. One commenter of contents on each portable tank must necessitate the 'breaking recommended that specification contain- properly identify the actual hazardous load lots even though not, ers 6D, 21P; 37M and .2TP containing." material the portable tank contains: time of shipment." (See 3€ liquid hazardous materials be excepted 308)• Provides for markings on cargo 172.328 ($177.823(b); HM-108, § 172. thinking applies to pallet 19, 1971:) The Bureau bel from the "This Side Up" marking re- quirement because the intent of the. tanks. The most significant change trom freight containers. package orientation marking is to iden- • existing rules is that for gases, the mark- • 172.401 (98-173.404 and 173.86; HM tify the top of a package that has been ing must be the proper shipping name 103, $ 172.401), Specifies labeling that overpacked. The Bureau agrees and has or an appropriate common name. is prohibited by the regulations in this provided for this exception. This section • 172.330 • §173.31(a) (6); also provides for the use of arrows to aug-: HM-103, $ 172.310) 2103 provides for mark- subchapter and provides for the use of certain labeling on packages in import ment the required package orientation • ings on tank cars including the marking and export shipments. The Bureau marking. This was not in the notice, visibility and the locatlon of the mark- agrees with the commenters who recom-; however, it was recommended by a com- ing on both sides of the tank car near mended that proposed § 172.401(&) be menter and the Bureau believes the use the stencilled DOT specification mark- clarified to permit the shipment of pack- of arrows will contribute to safety. To ing. Also requires that markings indi- ages of hazardous and nonregulated ma- prevent confusion and make the use of cate the actual hazardous material the terials (unless otherwise prohibited) in. arrows effective, this amendment pro- tank car contains. The most significant the same outside: packaging, and nas. vides that arrows on packages contain- changes from existing rules are the pro- reworded the • paragraph accordingly. ing hazardous material may not be used visions indicated above and the fact that. Several commenters discussed the prob-r for purposes other than to indicate the tank car marking requirements are im- lem arcarrier-could encounter in deter-of correct package orientation. plemented by references in Part 173 of mining whether or not's labeled package 172.316 (HM-103, ¿ 172.302) ' Provides the regulations as originally. proposed offered for transportation; containea Lov for marking an outside packaging con- under Docket HM-101 (37 FR 7104). regulated matertal for which the labe. inS •taining a material classed as ORM by 172.400- § 172.402 (b) ; HM-103, was appropriate Thie-Intent of the reg- identifying the ORM immediately fol- $$ 172.400(a) and 172.402) ' Provides fo ulation. 15. to prevent a carrer- from ac lowing or below the proper shipping general labeling requirements, and ex- "knowingly" accepting" for transporta- •ce. name. Those classed as ORM-A and C ceptions thereto. The most significant tion, an improperly labeled package. The must.be marked ORM-A and ORM-C, as, changes: to existing requirements 'are: carrier ismot expected to open a pack- appropriate. Those classed as ORM-B (a) The establishment of a maximum age to inspect its contents, "The certifris must be marked ORM-B-unless corro- size for freight containers wherein labels. cation of the shipper is to, be accepted • sive only to aluminum when wet, and 'are required instead of placards; (b) the unless inspection. or othere Intorma- then must be marked ORM-B-KEEP exclusion of packages containing ma- tion leads the carrier to, believe the DRY to indicate the precautions needed terials classed as ORM from labeling; labeling may be in error. The Bureau to prevent corrosive action. Since ORM- and (c) modification of the labeling pro- agrees with the commenters who recom- D materials essentially are consumer hibition in existing § 173.404(b). mended that proposed'§ 172.401 be re- commodities packaged in limited quanti- In accordance with the CGA: (Com- worded to better identify the exceptions ties, the Bureau believes that, as rec- pressed Gas Association) proposal in re- therein and has rewritten the section ac- ommended by several commenters, the. sponse to the notice, the Bureau has cordingly. The most significant change marking of the proper shipping name adopted in this section a change to CGA from existing rules is the labeling excep. 1 and the appropriate ORM are adequate Pamphlet C-7, Appendix A ("A Guide tion for a package containing a sample except that those ORM-D packages in- for the Preparation of Precautlonary • of a material being shipped to a labora- tended or offered for transportation by Markings for Compressed Gas Contain- tory for testing to determine its hazard air must be marked ORM-D-AIR to in- ers") which will identify one additional characteristics, dicate they meet the requirements of hazard when appropriate for a nonflam- 172.402 ($8 173.402 and 173.388; HM- § 173.6. Although not contained in the mable or a flammable compressed gas. 103, $ 172.402) Provides additional la-. FEDERAL REGISTER, VOL, 41, NO. 7A: THURSDAY, APRIL~15, 1976#

Page 61995 penalty Action Federal Aviation Administration Report TIFFIN ATHLETIC Offered a shipment of HM for transportation by air consisting of $10,000 MATS INC (Shipper) halogenated irritating liquid which had leaked; material was not identified, certified, secured, and otherwise in a condition required b properly classed, described, packaged, marked, labeled, named the HMR; shipping papers did not include the proper shipping name, 172.200(a), 172.202, 172.202(a)(1), 172.202(a)(2), 172.202(a)(3), hazard class, ID number, total quantity, proper certification. [171.2(a), 172.202(a)(4), 172.204(a), 172.204(c)(1), 172.204(c)(2), 172.400(a), 172.204(d), 172.202(b), 172.202(c), 172.304(a)(1), 172.204(c)(3), 172.600(c)(1), 172.600(c)(2), 172.602(b), 172.604 (a), 172.300(a), 172.301(a)(1), 172.312(a)(2), 173.22(a)(1), 173.22(a)(2), 173.24(b), 172.702, 173.1(b)] Case No. 94WP750303 TORO CO THE Offered a shipment of containing a power lawn mower with an internal $25,000" (Shipper) papers did not include the proper shipping name, hazard class, ID number, total quantity, proper certification. [171.2(a), 172.200(a), 172.202(a)(1), 172.202(a)(2), &(3), & (4), 172.202(b), 172.202(c), 172.204(a), 172.204(c)(1), &(2), & (3), 172.204(d), 172.300, 172.301(a), 172.304(a)(1), 172.400(a), 172.600(c)(1), 173.24(b)(1), and 173.220] Case No. 94WP720003 172.600(c)(2), 172.602(b), 172.604(a), 173.1(b), 173.22 (a), TOYOTA MOTOR Offered an air bag inflator for transportation by air when the $20,000 SALES USA INC shipment was not marked with the proper shipping name; shipping (Shipper) papers did not contain the packing group and EX number, and emergency phone number, and proper ID number. [1712(a), 172.202(a)(3), 172.202(a)(4), 172.301(a), 172.604(a), 173.166(c)] Case No. 93CE710028 TRACK N TRAIL Offered compressed gas and adhesive for transportation by air when $16,500 (Shipper) abeled, named, identified, certified, cushioned, secured, and in th he material was not properly classed, described, packaged, marked condition required by the HMR; shipping papers did not include the proper shipping, name hazard class, ID number, total quantity, proper certification. [171.2(a), 172.200(a), 172.202, 172.202(a)(1), 172.202(a)(2),172.202(a)(3), 172.202(a)(4), 172.202(b), 172.204, 172.204(a) or (c)(1),172.04(c)(2), 172.204(c)(3), 172.300 & 172.301(a), 172.400(a), 173.1(b)] Case No. 91AL700032 TRADEGLOBE Offered a package described as "Matches" which included 8 inner $750 IMPORT & EXPORT LTD (Shipper) packages, each containing 50 to 70 fireplace matches, for transportation by air when the HM was not properly classed, described, marked, labeled, and certified as required by the HMR. [171.2(a), 172.204(a), 172.204(c)(3), 172.400(a)] Case No. 95AL700010 32 •#