{"operation":"document","citation":"98-0603","title":"United Parcel Service Airlines — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1998-05-05","effective_on":null,"summary":"98-0603 response to United Parcel Service Airlines concerning 173.301.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-98-0603.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-98-0603.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-98-0603","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/1998/980603.pdf","body":"<<<PAGE 1>>>\n\n•\nU.S. Department\nof Transportation\nWashington, D.C\n400 Seventh Street. S.W.\n20590\nResearch and\nspecial Programs\nAdministration\nMr. Samuel S. Elkind\nAir Operations\nUnited Parcel Service\nAirlines\nMAY\n5 1998\n8203 National Turnpike\nLouisville, KY 40213\nDear Mr. Elkind:\nThis is in response to your letter requesting clarification of the package marking statement in\n49 CFR 175.30(e)(3), \"inside packages comply with prescribed specifications.\" Specifically, you\nasked for guidance as to what reasonable steps an aircraft operator must take to establish that a\nshipment conforms to the requírements of 49 CFR parts 172 and 173.\nIn the case of a DOT-39 specification cylinder, § 173.301(k) requires that a cylinder must be\nfurther contained within a strong outside packaging. Furthermore, the outside packaging required\nunder § 173.301(k) is not an \"overpack\" as defined in § 171.8 and applied in § 173.25. Section\n175.30(e) refers only to overpacks, it does not apply to individual packages that are properly\nprepared for shipment. There is no requirement in the Hazardous Materials Regulations (HMR)\nto mark the strong outside packaging required by §173.301(k) with the statement \"inside\npackages comply with prescribed specifications.\" However, we plan to propose that the strong\noutside packaging conform to the requirements of § 173.25 in a future action.\nIn its acceptance of a shipment of hazardous materials, no carrier may simply rely on the shipper's\ncertification as a basis for its determination that a package conforms to the requirements of the\nHMR when there are obvious discrepancies. Section 175.30 requires, in part, that an air carrier\nverify that a hazardous material is authorized for transportation aboard aircraft and the quantity of\nmaterial in one package when offered for transportation aboard a passenger-carrying or cargo-\nonly aircraft is within the limitations prescribed by § 172.101. For overpacks, a carrier has an\nobligation to verify the presence of the inside containers comply statement within a reasonable\nlimit. Section 175.3 states that a hazardous material not prepared for shipment in accordance\nwith Subchapter C, including part 173, of the HMR may not be accepted for transportation or\ntransported aboard an aircraft. Therefore, within recognizable limitations and reasonable\ndiscretion, a carrier must be able to recognize discrepancies of packaging, shipping papers,\nlabeling, and placarding.\nI hope this information is helpful. If we can be of further assistance, please contact us.\nstate a mith l\nHattie L. Mitchell\nChief, Regulatory Review and Reinvention\nOffice of Hazardous Materials Standards\n\n<<<PAGE 2>>>\n\nHy 1,3,116\n33\"\nUps\nUnited Parcel Service 1400 North Hurstbourne Pkwy.. Louisville, KY 40223\nis;\n(502) 329-3000\nDecember 13, 1996\nMr. Edward Mazzullo\nDirector, Office of Hazardous Materials Standards\nResearch & Special Programs Administration\nU.S. Department of Transportation - DHM-10\n400 Seventh Street. SW\nWashington, D.C. 20590\n-\nDear Mr. Mazzullo:\nIn response to ongoing discussions involving UPS and two customers, a major automotive shipper,\nand one of its suppliers, I write for clarification of the rules governing the statement \"Inside\ncontainers comply with prescribed specifications.\" We wish to clarify the application of this\nstatement in a specific situation and to receive guidance on associated requirements as they relate\nto an accepting carrier's responsibilities under the Hazardous Materials Regulations.\nreferring to a carrier's responsibility, I mean both a motor carrier's and an air carrier's obligations.\nIn seeking to clarify the requirements governing the use of this statement for outer packages\ncontaining DOT Specification 39 cylinders, I placed two calls on December 12 to the Hazardous\nMaterials Information Line, speaking first to Theresa Gwynn and later to Diane LaValle. My\npurpose was to determine whether the \"Inside containers comply...\" statement is required on\npackages containing Spec 39 cylinders, and, if so, whether a carrier has an obligation to verify the\npresence of the statement.\nUnfortunately, I received partially contradictory answers, so the clarification sought by this letter is\nespecially important. Ms. Gwynn determined, through reference to §173.301(k), that the absence\nof a specific requirement for that statement on packages containing Spec 39 cylinders means that\nthe statement is not required and added that a carrier would have no obligation to check for it in the\nfirst place. Ms. LaValle, by contrast, indicated that she believed the statement is required, and, on\nhearing Ms. Gwynn's interpretation, sought and received guidance from Hattie Mitchell, that it is\nRSPA's intent to require the \"Inside containers comply..\" statement through future rulemaking.\nOn the question of a carrier's obligation to verify the presence of \"Inside containers comply...\"\nstatement, Mis. LaValle echoed Mis. Gwynn's sentiment that Part 173 requirements are the province\nof the shipper, not the carrier.\nThis exchange leaves some important questions open. First, does a carrier need to verify that a\npackage correctly states \"Inside containers comply...\" and, if so, how does a carrier determine that\nit is required? We note that, in apparent contradiction of Mis. Gwynn's advice, an air carrier is\nspecifically instructed to verify that the \"Inside containers comply...\" statement appears when it is\nrequired [§175.30(e)(3)]. Yet the troubling feature of this Part 175 requirement with regard to\ngases is that since only some situations clearly appear to require the statement (2P and 2Q\ncylinders, aerosols, foodstuffs under pressure), only an expert in gases would have the knowledge\nto apply this requirement, and even then such a person might need to know exactly which\nUSC 3:0\n\n<<<PAGE 3>>>\n\nMr. Edward Mazzullo\nDecember 13, 1996\nPage 2\ncontainers are inside a package. Such information would be unavailable to a carrier, since they\nare, after all, inside.\nWith respect to the original question -- whether a package containing a Spec 39 cylinder actually\nrequires the statement -- in light of Ms. La Valle's comment about RSPA's intent (as distinct from\nthe actual content of the regulations), I can only comment that the situation is so confusing that\nneither shippers nor carriers know what is required. Your clarification is needed.\nMy December 12 discussions leave open additional issues, as well. If a carrier need not verify that\na package correctly states \"Inside containers comply...\" then do other shipper's requirements also\nlie outside a carrier's responsibility? Ms. Gwynn and Ms. LaValle point to the shipper's\ncertification as relieving a carrier from the duty to check such issues.\nThe concept that Part 173 requirements are obligations of the shipper (only) would appear to place\nthe burden of package selection -- up to and including packages tested for the appropriate Packing\nGroup -- strictly on the shipper, and relieve the carrier from any duty to check. It would appear, in\nother words, to remove any obligation to ensure such features of a shipment as: whether an\nappropriate package has been used; whether the gross mass of a UN spec package has not been\nexceeded; whether for air shipments of Classes 4, 5, and 8 in Packing Group III, a package tested\nto the Packing Group II requirements is used.\ncontainers comply...\nThe essential points of this letter are to understand what is required with respect to the \"Inside\n\" statement and then to determine if it is true that a motor carrier or air carrier\nmay with confidence assume that Part 173 requirements lie outside its purview when accepting a\npackage. In addition to resolving the marking question, it would be helpful if RSPA could provide\nguidance as to where a carrier's obligations end. For example, some requirements elsewhere in the\nregulations appear impossible for a carrier to verify (see, for example, the many alternatives to\nmarking the EX number on a package, in §172.320, in addition to §173.166). If RSPA telephone\nrepresentatives are suggesting that carriers have no responsibilities in areas that pertain exclusively\nto shippers, then we need to have that stated clearly in writing. We note with interest that a carrier\nrecently paid a penalty partly due to the absence of an EX number, and yet this, by virtue of its\nappearance in §173.166, would seem -- according to the guidance offered by RSPA's telephone\nrepresentatives —- to be only a shipper's responsibility. (See Hazardous Materials Penalty Report,\nFY95, FAA Case 93CE710034, enclosed.)\nAs this is a matter of ongoing commercial concern, we look forward to your timely reply. If it\nmuch for your assistance in this matter.\nwould expedite the process, you may fax your reply to me at (502) 359-1899. Thank you very\nSincerely,\nsumer 1. Ilkind\nSamuel S. Elkind\nAir Dangerous Goods\nEnclosure\n\n<<<PAGE 4>>>\n\n-\n=\nFederal Aviation Administration\n(Carrier)\nADAMS AIR CARGO\nAccepted and offered for shipment by air HM when that material was\nrequired by the HMR; materials were incompatible when packaged\nnot properly classed, described, packaged, labeled, and in the condition\n$4,000\ntogether (Class 5 and Class 8). [171.2(a), 171.11]\nCase No. 93WP710639(HM)\nADVANCED\nPLASMA INC\nOffered paint for transportation by air when the material was not\n(Shipper)\nproperly classed, described, packaged, marked, labeled, named,\n$1,000\nidentified, certified, cushioned, secured, and in the condition requirec\nby the HIMR; the shipping papers did not include the proper shipping,\nthere was significant release of the HM to the environment. [171.2(a),\nname, hazard class, iD number, total quantity, proper certification;\n172.200(a), 172.202(a)(1), 172.300, 172.301(a), 172.400(a), 173.1 (b),\n173.117(a)] Case No. 91S0730260\nAIR PRODUCTS\nJAPAN INC (Shipper)\nby air when the HM was not properly classed, described, marked,\nOffered one metal can containing triethyl silicate for transportation\n$5,000\n172.202(a)(2), 172.202(a)(3), 172.202(a)(4), 172.202(b),\n172.204(c)(3)] Case No. 94AL700049\n172.202(с), 172.204, 172.204 (a) or (c)(1), 172.204(c)(2)\nAIRBORNE\nEXPRESS (Carrier)\nTransported by air HM - paint related materials and a corrosive liquid,\nof Dangerous Goods, the shipment was still not properly classed\nnd although the shipment was accompanied by a Shippers Declaratio\n$10,000\ndescribed, packaged, marked, labeled, and in the condition for\nshipment. [171.2(a), 171.11, ICAO Part 1, Ch.2, para. 2.6.3.3(a), Part\nCase No. 93WP710575(HM)\n4, Ch. 3, para. 3.2.10(b), Part 4, Ch.4, para. 4.1.3(f)]\nAIRBORNE\nEXPRESS (Carrier)\nconsisting of radioactive material. [175.31(a), 171.2(a), 171.2(b),\nAccepted and transported four shipments of HM in air commerce\n$10,000\n171.11(a), 175.3, 175.30(a)(2)] Case No. 93WP750251\nEXPRESS INC\nAIRBORNE\nAccepted an air bag inflator from Toyota Motor Distributors without\n(Carrier)\nthe proper documentation in that the shipping papers did not contair\n$5,500\n[171.2(a), 175.20(a), 175.30(a)(2)] Case No. 93CE710034\nthe EX number, emergency phone number, the proper ID number.\nANT SHAH\nINCORPORATED\nOffered paint related material, adhesive, and flammable liquid for\n$10,000\n(Shipper)\nshipping papers did not include the proper shipping name, hazard class,\n:\n1\n\n<<<PAGE 5>>>\n\nRULES AND REGULATIONS\n15979\nintent of the DOT regulations would not\nnotice, this amendment provides for at-: Adoption of the amended standard-was.\nbe precluded by this restriction:\ntaching the marking to an ORM pack-\nproposed in Notice 73-10A (39 FR 43091).\n172.306\n($S.173.401 (b)\nand\n177.816;\nage with a. tag when circumstances pre-\nThe standard has since been revised to\nHM-103,\n- $ 172.302(e))\nProvides\nfor\nvent the application of the marking: to\nremove references to hazard information\nmarking the name and address. of the\nthe package suriace.\nnumbers.\nCommenters\nrecommended.\nconsignee on the package and specifies\nAlso,\nthe Bureau has added a pro-\nthat a hazardous material classed as &\nthe exceptions to this requirement. One\nvision\nauthorizing the marking on a\n\"Poisonous compressed gas\" be author-\ncommenter recommended that the ex-\npackage containing a material classed as:\nized under the provisions of the CGA\nceptions be extended to packages in a\nORM to be accepted in lieu of the cer-\nPamphlet C-7, Appendix A. This recom-\nfreight\ncontainer. The Bureau\nagrees,\ntification required on shipping papers\nmendation is not adopted because the\nhas made such provisions, and has added\nin\nthose instances\nwherein shipping\nBureau believes that materials classed as\na clarification of the intent of the pro-\npapers are not required. This was not\nPoison A must be labeled because of the\nvision as pertaining\nto\n\"carload lot,\nproposed in the notice, but the Bureau\nspecial requirements applicable to themi.\n\"truckload lot\" and\n\"freight container\nbelieves this will accomplish the require-\nOther comments\nrecommended that\nload\".\nments to\nenhance safety-without re-\npackages in freight containers and pal\n172.308 (§ 173.400(a); HM=103, § 172.-\nquiring additional paperwork.\nletized loads be excepted from labeling..\n302 (c)).\nProvides for the use oi cerval-\n•. 172.326\n(§ 173.401(a) (1) ;\nEIM-103,\nrequirements. The Bureau believes that\nabbreviations in markings. No substan-\n§ 172.305(1)) Provides for marking the\nthe hazards must be identified for proper.\ntive change.\nproper shipping name on the head and\nhandling and as an assistance to emer-\n172.310\n(HM-111, § 173.401 (t)). Pro-\n- one side of each portable tank when ap-\ngency-response personnel durinc.inol\nvides for additional markings for pack-\npropriate or on two opposing sides. The.\n•dents involving hazardoi\nages containing radioactive. materials.\nBureau agrees with commenters who\ntransportation. This was 1\nThis requirement proposed under Docket\nrecommended one marking be placed on\npreamble to Docket No. EL\nHM-111, was published after notice and\nan \"operating side\" of a portable tank,\nof Label Exemptions) an\nLOY-\npublished comment on December\n31,\nand has made such provision. Based on\n19.74, and became effective on March 31,\none commenter's recommendation,\nthe\nlanguage from the preamt\nappropriate: \"In the cl\n1975 (39 FR 45238).\nBureau reconsidered the proposed defi-.\nsector, even when truckic\n172.312 (§ 173.401 (c); HM-103, § 172.-\nnition of portable tanks and has exclud-\nvolved, it is essential that\n302(h))\nProvides for markings on cer-\ned multi-unit-tank-car-tanks: The most:\nconsistent labeling system\ntain packages containing liquid hazard-\nsignificant change from existing rules\nin order to assure its maxi\nous material to indicate the orientation\nis the requirement that the marked name\npiess. Also, there are occi\nof the inside packaging. One commenter\nof contents on each portable tank must\nnecessitate the 'breaking\nrecommended that specification contain-\nproperly identify the actual hazardous\nload lots even though not,\ners 6D, 21P; 37M and .2TP containing.\"\nmaterial the portable tank contains:\ntime of shipment.\" (See 3€\nliquid hazardous materials be excepted\n308)• Provides for markings on cargo\n172.328 ($177.823(b); HM-108, § 172.\nthinking applies to pallet\n19, 1971:) The Bureau bel\nfrom the \"This Side Up\" marking re-\nquirement because the intent of the.\ntanks. The most significant change trom\nfreight containers.\npackage orientation marking is to iden-\n• existing rules is that for gases, the mark-\n• 172.401 (98-173.404 and 173.86; HM\ntify the top of a package that has been\ning must be the proper shipping name\n103, $ 172.401), Specifies labeling that\noverpacked. The Bureau agrees and has\nor an appropriate common name.\nis prohibited by the regulations in this\nprovided for this exception. This section\n• 172.330 •\n§173.31(a) (6);\nalso provides for the use of arrows to aug-:\nHM-103, $ 172.310)\n2103 provides for mark-\nsubchapter and provides for the use of\ncertain labeling on packages in import\nment the required package orientation\n• ings on tank cars including the marking\nand export shipments.\nThe Bureau\nmarking.\nThis was not in the notice,\nvisibility and the locatlon of the mark-\nagrees with the commenters who recom-;\nhowever, it was recommended by a com-\ning on both sides of the tank car near\nmended that proposed § 172.401(&) be\nmenter and the Bureau believes the use\nthe stencilled DOT specification mark-\nclarified to permit the shipment of pack-\nof arrows will contribute to safety. To\ning. Also requires that markings indi-\nages of hazardous and nonregulated ma-\nprevent confusion and make the use of\ncate the actual hazardous material the\nterials (unless otherwise prohibited) in.\narrows effective, this amendment pro-\ntank car contains. The most significant\nthe same outside: packaging, and nas.\nvides that arrows on packages contain-\nchanges from existing rules are the pro-\nreworded the • paragraph\naccordingly.\ning hazardous material may not be used\nvisions indicated above and the fact that.\nSeveral commenters discussed the prob-r\nfor purposes other than to indicate the\ntank car marking requirements are im-\nlem arcarrier-could encounter in deter-of\ncorrect package orientation.\nplemented by references in Part 173 of\nmining whether or not's labeled package\n172.316 (HM-103, ¿ 172.302) ' Provides\nthe regulations as originally. proposed\noffered for transportation; containea Lov\nfor marking an outside packaging con-\nunder Docket HM-101 (37 FR 7104).\nregulated matertal for which the labe. inS\n•taining a material classed as ORM by\n172.400-\n§ 172.402 (b) ;\nHM-103,\nwas appropriate Thie-Intent of the reg-\nidentifying the ORM immediately fol-\n$$ 172.400(a) and 172.402) ' Provides fo\nulation. 15. to prevent a carrer- from ac\nlowing\nor below the proper shipping\ngeneral labeling requirements, and ex-\n\"knowingly\" accepting\" for transporta-\n•ce.\nname. Those classed as ORM-A and C\nceptions thereto.\nThe most significant\ntion, an improperly labeled package. The\nmust.be marked ORM-A and ORM-C, as,\nchanges: to existing requirements 'are:\ncarrier ismot expected to open a pack-\nappropriate.\nThose classed as ORM-B\n(a) The establishment of a maximum\nage to inspect its contents, \"The certifris\nmust be marked ORM-B-unless corro-\nsize for freight containers wherein labels.\ncation of the shipper is to, be accepted\n• sive only to aluminum when wet, and\n'are required instead of placards; (b) the\nunless inspection. or othere Intorma-\nthen must be marked ORM-B-KEEP\nexclusion of packages containing ma-\ntion leads the carrier to, believe the\nDRY to indicate the precautions needed\nterials classed as ORM from labeling;\nlabeling\nmay be in error. The Bureau\nto prevent corrosive action. Since ORM-\nand (c) modification of the labeling pro-\nagrees with the commenters who recom-\nD\nmaterials essentially are consumer\nhibition in existing § 173.404(b).\nmended that proposed'§ 172.401 be re-\ncommodities packaged in limited quanti-\nIn accordance with the CGA: (Com-\nworded to better identify the exceptions\nties,\nthe Bureau believes that, as rec-\npressed Gas Association) proposal in re-\ntherein and has rewritten the section ac-\nommended by several commenters, the.\nsponse to the notice, the Bureau has\ncordingly. The most significant change\nmarking of the proper shipping name\nadopted in this section a change to CGA\nfrom existing rules is the labeling excep. 1\nand the appropriate ORM are adequate\nPamphlet C-7, Appendix A (\"A Guide\ntion for a package containing a sample\nexcept that those ORM-D packages in-\nfor the Preparation of Precautlonary • of a material being shipped to a labora-\ntended or offered for transportation by\nMarkings for Compressed Gas Contain-\ntory for testing to determine its hazard\nair must be marked ORM-D-AIR to in-\ners\") which will identify one additional\ncharacteristics,\ndicate\nthey meet the requirements of\nhazard when appropriate for a nonflam-\n172.402 ($8 173.402 and 173.388; HM-\n§ 173.6. Although not contained in the\nmable or a flammable compressed gas.\n103, $ 172.402)\nProvides additional la-.\nFEDERAL REGISTER, VOL, 41, NO. 7A: THURSDAY, APRIL~15, 1976\n\n<<<PAGE 6>>>\n\n1995 penalty\nAction\nFederal Aviation Administration\nReport\nTIFFIN ATHLETIC\nOffered a shipment of HM for transportation by air consisting of\n$10,000\nMATS INC (Shipper)\nhalogenated irritating liquid which had leaked; material was not\nidentified, certified, secured, and otherwise in a condition required b\nproperly classed, described, packaged, marked, labeled, named\nthe HMR; shipping papers did not include the proper shipping name,\n172.200(a), 172.202, 172.202(a)(1), 172.202(a)(2), 172.202(a)(3),\nhazard class, ID number, total quantity, proper certification. [171.2(a),\n172.202(a)(4),\n172.204(a),\n172.204(c)(1),\n172.204(c)(2),\n172.400(a), 172.204(d), 172.202(b), 172.202(c), 172.304(a)(1),\n172.204(c)(3), 172.600(c)(1), 172.600(c)(2), 172.602(b), 172.604 (a),\n172.300(a), 172.301(a)(1), 172.312(a)(2), 173.22(a)(1), 173.22(a)(2),\n173.24(b), 172.702, 173.1(b)] Case No. 94WP750303\nTORO CO THE\nOffered a shipment of containing a power lawn mower with an internal\n$25,000\"\n(Shipper)\npapers did not include the proper shipping name, hazard class, ID\nnumber, total quantity, proper certification. [171.2(a), 172.200(a),\n172.202(a)(1), 172.202(a)(2), &(3), & (4), 172.202(b), 172.202(c),\n172.204(a), 172.204(c)(1), &(2), & (3), 172.204(d), 172.300,\n172.301(a), 172.304(a)(1), 172.400(a), 172.600(c)(1),\n173.24(b)(1), and 173.220] Case No. 94WP720003\n172.600(c)(2), 172.602(b), 172.604(a), 173.1(b), 173.22 (a),\nTOYOTA MOTOR\nOffered an air bag inflator for transportation by air when the\n$20,000\nSALES USA INC\nshipment was not marked with the proper shipping name; shipping\n(Shipper)\npapers did not contain the packing group and EX number, and\nemergency phone number, and proper ID number. [1712(a),\n172.202(a)(3), 172.202(a)(4), 172.301(a), 172.604(a), 173.166(c)]\nCase No. 93CE710028\nTRACK N TRAIL\nOffered compressed gas and adhesive for transportation by air when\n$16,500\n(Shipper)\nabeled, named, identified, certified, cushioned, secured, and in th\nhe material was not properly classed, described, packaged, marked\ncondition required by the HMR; shipping papers did not include the\nproper shipping, name hazard class, ID number, total quantity,\nproper certification. [171.2(a), 172.200(a), 172.202, 172.202(a)(1),\n172.202(a)(2),172.202(a)(3), 172.202(a)(4), 172.202(b), 172.204,\n172.204(a) or (c)(1),172.04(c)(2), 172.204(c)(3), 172.300 &\n172.301(a), 172.400(a), 173.1(b)] Case No. 91AL700032\nTRADEGLOBE\nOffered a package described as \"Matches\" which included 8 inner\n$750\nIMPORT & EXPORT\nLTD (Shipper)\npackages, each containing 50 to 70 fireplace matches, for transportation\nby air when the HM was not properly classed, described, marked,\nlabeled, and certified as required by the HMR. [171.2(a), 172.204(a),\n172.204(c)(3), 172.400(a)] Case No. 95AL700010\n32\n•","truncated":false,"body_characters":22745}