# United Parcel Service Airlines — Hazardous Materials Safety Interpretation

- **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:** Not available
- **summary:** 98-0603 response to United Parcel Service Airlines concerning 173.301.
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- **source url:** https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/1998/980603.pdf
**body:**

<<<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 2>>>

Hy 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 3>>>

Mr. 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 5>>>

RULES 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 6>>>

1995 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
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