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U.S. Department of Transportation U.S. Department of Transportation Icon United States Department of Transportation United States Department of Transportation

Interpretation Response #03-0065 ([Eliokem, Inc.] [Mr. Dennis McMahan])

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date:

Company Name: Eliokem, Inc.

Individual Name: Mr. Dennis McMahan

Location State: OH Country: US

View the Interpretation Document

Response text:

Jun 23, 2003


Mr. Dennis McMahan                Reference No. 03-0065
Supply Chain and Logistic Manager
Eliokem, Inc.
1452 East Archwood, Suite 240
Akron, OH 44306

Dear Mr. McMahan:

This is in response to your letter asking if a Class 9 label may remain on a package of styrenated phenol liquid when it is shipped in the United States (U.S.) or within a U.S.-designated port area provided the shipping paper does not describe the material as a hazardous material and the disclaimer "Not subject to U.S. DOT regulation" is marked on the package. You state the styrenated phenol liquid meets the criteria for the Class 9 hazard class under the European Agreements concerning the International Carriage of Dangerous Goods by Road (ADR) and Rail (RID) regulations for transportation of hazardous materials by highway or rail in Europe, but does not meet the definition of any hazard class under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180), or the International Maritime Dangerous Goods Code (IMDG Code) for transportation in the U.S. The material safety data sheet you provided states the material may cause an adverse effect in an aquatic environment.

The HMR do not authorize labeling in accordance with the ADR/RID regulations. Section 172.401 (c) permits labeling in accordance with the IMDG Code, International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air, or Canadian Transport of Dangerous Good Regulations only if a material is a hazardous material or dangerous good under any of these regulations. However, the IMDG Code does not include a prohibition consistent with § 172.401. As the IMDG Code does not specifically prohibit the use of labels authorized by ADR/RlD, packages of the ADR aquatic environment material may be labeled Class 9 and are acceptable for transportation within the U.S. We recommend ADR labeled packages transported in the U.S. be limited to closed freight containers and transport vehicles to avoid potential frustration of the shipments. A statement such as "non-DOT regulated" or "not subject to U.S. DOT regulation" may appear on the product label for subsequent transportation in the U.S.

Also, in a notice of proposed rulemaking published on December 3,2002 (Docket No. RSPA-02¬13658, HM-2l5E), we proposed adding Special Provision 146 to § 172.102 of the HMR. This special provision will permit materials that are designated as environmentally hazardous by the Competent Authority of the country of origin, transit, or destination, but do not meet the definition of a hazardous substance or hazardous waste in § 171.8 or any other HMR hazard class to be described as "Environmentally hazardous substances, liquid or solid, n.o.s." The final rule is under development.

You also asked us to clarify what is meant by the phrase "final destination" when the styrenated phenol liquid is imported into the U.S. under the IMDG Code, delivered to Eliokem's distribution warehouse, and then further sold and shipped to customers. Specifically, you seek guidance for determining when a hazardous material has completed transportation and is no longer subject to the HMR.. "Transportation," as defined in § 5102 of the Federal hazardous materials transportation law (49 U.S.C. 5101-5127), means the movement of property and loading, unloading, or storage incidental to the movement. A hazardous material's transportation ends once a consignee takes physical delivery of the hazardous material from the carrier. After delivery, storage of a hazardous material at a consignee's facility is not "storage incidental to the movement" within the meaning of the Federal hazardous materials transportation law; thus, the HMR do not apply to such storage. Transportation in commerce begins again when the hazardous material is re-offered and accepted for transportation for delivery to another

I hope this satisfies your request.



Hattie L. Mitchell, Chief
Regulatory Review and Reinvention
Office of Hazardous Materials Standards

Regulation Sections

Section Subject
172.401 Prohibited labeling