{"operation":"document","citation":"CHI-10-001","title":"Potomac Strategy Associates — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2010-01-20","effective_on":null,"summary":"CHI-10-001 response to Potomac Strategy Associates concerning 171.8, 178.801.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-001.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-001.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-001","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-10-001.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\n1200 New Jersey Ave., S.E.\nof Transportation\nWashington, D.C. 20590\nPipeline and Hazardou:\nMateriais Safety Administratior\nChief Counsel\nOffice of\nJAN 2 O 2010\nJerry W. Cox, Esq.\nPotomac Strategy Associates\nP.O. Box 11231\nMcLean, VA 22102-9231\nDear Mr. Cox:\nMs. Douglass has asked me to respond to your September 24, 2009 letter to her\nconcerning the definition in the Hazardous Material Regulations (HMR), 49 C.F.R. parts\n171-180, of a \"non-bulk packaging\" when used as a receptacle for solids: \"a packaging\nwhich has: ... (2) A maximum net mass of 400 kg (882 pounds) or less and a maximum\ncapacity of 450 L (119 gallons) or less.\". 49 C.F.R. § 171.8. As you note, under that\ndefinition, a packaging must meet both the weight (or mass) and capacity (or volume)\ncriteria to be a \"non-bulk packaging\" under the HMR. You state that your client\nquestions whether this definition was validly issued and carries out the intention of the\nPipeline and Hazardous Materials Administration (PHMSA) and its predecessor agency,\nthe Research and Special Programs Administration (RSPA).\nI regret that it has taken more time to respond to your letter than we initially anticipated,\nand I hope that this delay has not caused any inconvenience for your client.\nBefore RSPA's rulemaking in Docket No. HM-181, a \"non-bulk packaging\" as a\nreceptacle for a solid material was defined as a packaging with \"a capacity of 400\nkilograms (881.8 pounds) or less.\" 49 C.F.R. § 171.8 (Oct. 1, 1990 edition). In a similar\nmanner, a \"bulk packaging\" as a receptacle for a solid material was defined as a\npackaging with a capacity greater than 400 kilograms (881.8 pounds).\" Id.\nIn response to the notice of proposed rulemaking in Docket No. HM-181, a commenter\nsuggested revising the definitions of \"bulk packaging\" and \"non-bulk packaging\" based\nupon their volumetric capacity, rather than the mass or weight of their contents, because\n\"the distinction for non-bulk vs. bulk packaging of solids ... in pounds ... would cause\nan identical package to be 'bulk' in some cases and 'non-bulk' in others given the various\ndensity of materials transported.\" RSPA's December 21, 1990 final rule (55 Fed. Reg.\n52402) did not fully carry out this proposed revision in defining these terms, in relevant\npart, as follows:\n\n<<<PAGE 2>>>\n\nBulk packaging means a packaging ... which has: ... (2) A\ncapacity by weight greater than 400 kg (882 pounds) or internal volume\ngreater than 450 L (119 gallons) as a receptacle for a solid.\nNon-bulk packaging means a packaging which has: ... (2) A\ncapacity of 400 kilograms (882 pounds) or less or an internal volume of\n450 liters (119 gallons) or less as a receptacle for a solid.\n55 Fed. Reg. 52471. The problem with the definitions adopted in the December 21, 1990\nfinal rule is that a packaging having a capacity by weight greater than 400 kg and an\ninternal volume no more than 450 liters could be both a bulk packaging and a non-bulk\npackaging at the same time. Similarly, a packaging having a capacity or 400 kg or less\nand an internal volume greater than 450 liters could also be both a bulk packaging and a\nnon-bulk packaging at the same time.\nOn December 20, 1991, RSPA published a further final rule in Docket No. HM-181\nmaking revisions and editorial and technical corrections to the December 21, 1990 final\nrule. 56 Fed. Reg. 66124. At that time, RSPA revised the definitions of \"bulk\npackaging\" and \"non-bulk packaging\" in relevant part, as follows:\nBulk packaging means a packaging ... which has: ... (2) A\nmaximum net mass greater than 400 kg (882 pounds) or a maximum\ncapacity greater than 450 L (119 gallons) as a receptacle for a solid.\nmaximum net mass of 400 kg or less and a maximum capacity of 450 L\nNon-bulk packaging means a packaging which has: ... (2) A\n(119 gallons) or less as a receptacle for a solid.\n56 Fed. Reg. at 66158. By changing \"or\" to \"and\" in the definition of a \"non-bulk\npackaging\" RSPA eliminated the possibility that a packaging could be both a \"bulk\" and\na \"non-bulk\" packaging at the same time. Under the revised definitions, only a\npackaging the bas be oasim a or bilk papa 100k and a ginity or eleme\neither the weight or volume threshold would be considered a \"bulk packaging.\"\nAs you also discuss, on October 1, 1992, RSPA published another final rule in Docket\nDecember 21, 1990 and December 20, 1991 final rules. 57 Fed. Reg. 45446. In this final\nNo. HM-181 to correct editorial errors and make minor regulatory changes to the\nrule, the definitions of \"bulk packaging\" and \"non-bulk packaging\" were revised, in\nBulk packaging means a packaging ... which has: ... (2) A\nmaximum net mass greater than 400 kg (882 pounds) and a maximum\ncapacity greater than 450 L (119 gallons) as a receptacle for a solid.\n2\n\n<<<PAGE 3>>>\n\nNon-bulk packaging means a packaging which has: ... (2) A\nmaximum net mass less than 400 kg (882 pounds) and a maximum\ncapacity less than 450 L (119 gallons) as a receptacle for a solid.\n57 Fed. Reg. 45453. However, clerical errors in this final rule led to, first, a correction to\nthat part of the definition of \"bulk packaging\" when used as a receptacle for a liquid (57\nFed. Reg. 47513 [Oct. 16, 1992]) and, second, revisions to the threshold quantities in the\ndefinition of \"non-bulk packaging\" by replacing the wording \"less than 400 kg (882\npounds)\" and \"less than 450 L (119 gallons)\" with '400 kg (882 pounds) or less\" and\n\"450 L (119 gallons) or less,\" respectively. 57 Fed. Reg. 59309 (Dec. 15, 1992).\nAs you have noted, in the preamble to the October 1, 1992 final rule, RSPA stated that it\nwas revising the definition of \"non-bulk packaging\" \"to clarify that the maximum\ncapacity of the packaging must be less than 450 L (119 gallons) and for solids the\nmaximum net mass of the packaging must be less than 400 kg or a maximum capacity of\nless than 450 L.\" 57 Fed. Reg. 45446. Any significance of this preamble statement is\nweakened by the December 15, 1992 revisions to the definition of \"non-bulk packaging\"\nwhich (1) corrected the unintended change in October 1992 to \"less than\" from \"or less\"\nin the 1990 and 1991 final rules, and also (2) left unchanged the need for such a\npackaging to have both a net mass no greater than 400 kg and a capacity no greater than\n450 L.\nBased on this rulemaking history, it is clear that-\n--The revisions to the definition of a \"non-bulk packaging\" in 1990, 1991, and\n1992 were part of the rulemaking in Docket No. HM-181, in which RSPA issued\na notice of proposed rulemaking and adopted final rules after considering the\ncomments in response to that notice. There is no basis for your argument that the\n1991 and 1992 final rules were not adopted in a \"notice-and-comment\"\nrulemaking proceeding.\n--In every case, any interested party had an opportunity to petition RSPA to\nreconsider the final rules it had adopted. See 49 C.F.R. § 106.35, as in effect\nduring 1990-92. No petition was submitted for reconsideration of the revisions of\nthe definition of \"non-bulk packaging,\" nor was judicial review sought of any of\nthese final rules.\n--The definition of \"non-bulk packaging\" as a receptacle for a solid material has\ninterpreted the plain words of the definition to mean that only a packaging that\nremained unchanged since December 15, 1992, and the agency has consistently\nhas both a net mass no greater than 400 kg and a capacity no greater than 450 L\nmeets the definition of a \"non-bulk packaging\" as a receptacle for a solid.\nforth as \"450 L (199 gallons) rather than \"450 L (119) gallons.\" See. 57 Fed. Reg. at 45453.\n\" In the October 1, 1992 final rule, the threshold for a \"bulk packaging\" as a receptacle for a liquid was set\n3\n\n<<<PAGE 4>>>\n\nFor these reasons, I am unable to agree with your client's position that a combination\npackaging weighing less than 400 kg but having an internal volume greater than 450 L\nmeets the definition of a \"non-bulk packaging\" as intended and adopted in the Docket\nNo. HM-181 rulemaking and as currently set forth in 49 C.F.R. § 171.8. Rather, such a\npackaging may meet the definition in 49 C.F.R. § 171.8 of a \"large packaging\" as\nadopted in RSPA's June 21, 2001 final rule (66 Fed. Reg. 33335), which may be used for\nthe transportation of hazardous materials in commerce \"if approved by PHMSA's\nAssociate Administrator.\" 49 C.F.R. § 178.801(i). Therefore, PHMSA is not accepting\nyour suggestions to (1) publish a letter of interpretation that the current definition of\n\"non-bulk packaging\" in 49 C.F.R. § 171.8 was not validly adopted, (2) initiate a new\n- rulemaking to revise the current definition of \"non-bulk packaging\" (beyond the current\nproceeding in Docket No. HM-231), or (3) provide assurances that enforcement actions\nwill not be taken if your client makes shipments of hazardous materials in packagings\nthat are not authorized under the HMR, an approval, or a special permit.\nIf you have further questions or need additional information, you may contact me or\nFrazer C. Hilder of my staff at 202-366-4400.\nSincerely,\nSheri d. lappas\nSherri L. Pappas\nActing Chief Counsel\n2 See the September 1, 2006 notice of proposed rulemaking in Docket No. PHMSA-06-25736 (HM-231)\n\"bulk packaging\" and \"non-bulk packaging\" to clarify how these terms are defined without changing their\n(71 Fed. Reg. 52017, 52026), in which PHMSA is currently considering revisions to the definitions of\nmeaning.. Your letter will be considered a comment in this rulemaking and placed in the public docket.\n4","truncated":false,"body_characters":9483}