Q1. Does the HMR allow your company, a manufacturer and shipper of hazardous materials, to mark the non-bulk, performance-oriented packagings with the markings required under § 178.503(a)(8)?

A1. Yes. Under § 178.503(a)(8), a packaging conforming to a UN standard must be marked with the "name and address or symbol of the manufacturer or the approval agency [emphasis added] certifying compliance with subpart L and subpart M of this part." The marking per § 178.503(a)(8) indicates the responsible party who certifies that the packaging was manufactured to a successfully-tested design type and complies with all applicable requirements of Part 178. Under § 178.2, "manufacturer" is defined as "the person whose name and address or symbol appears as part of the specification markings required by this part [Part 178] or, for a packaging marked with the symbol of an approval agency, the person on whose behalf the approval agency certifies the packaging." Thus, according to this definition, your company could be the "manufacturer," as the manufacturer may or may not be the actual "fabricator" of the packaging (e.g., the entity that physically manufactures the UN 4G fiberboard boxes).

While your company may not be the actual fabricator of the packaging, your company is able to "self-certify" by marking the packaging in conformance with the certification requirement in § 178.503(a)(8). Alternatively, at the direction of your company, the packaging fabricator could mark the packaging on your behalf with your company's name and address or symbol. Please see the enclosed Letter of Interpretation (Ref. No. 02-0139) for additional information on the self-certification of packagings.

In addition, the HMR allows for an approval agency (i.e., a DOT-recognized, "UN Third-Party Packaging Certification Agency" as described in § 107.402(c)) to mark and certify the packaging. In order to be designated and approved as a UN Third-Party Packaging Certification Agency, an organization or person must apply to the Associate Administrator in accordance with the instructions and requirements in Part 107, Subpart E—Designation of Approval and Certification Agencies. A DOT-recognized, UN Third-Party Packaging Certification Agency would be assigned a unique symbol, beginning with a plus sign ("+").

Therefore, under § 178.503(a)(8), your company may mark and certify the packaging as the manufacturer (as defined in § 178.2). The fabricator could also mark the packaging on your company’s behalf with your company’s name and address or symbol. In addition, a DOT-recognized, UN Third-Party Packaging Certification Agency may mark and certify the packaging as the approval agency using its unique symbol.

Please note that under § 178.3(a)(2), "Symbols, if used, must be registered with the Associate Administrator. Unless authorized in writing by the holder of the symbol, symbols must represent either the packaging manufacturer [as defined in § 178.2] or the approval agency responsible for providing the most recent certification for the packaging through design certification testing or retesting, as applicable. Duplicative symbols are not authorized."

Q2. In order to satisfy § 178.503(a)(8), does PHMSA prefer that the non-bulk, performance-oriented packaging be marked by the manufacturer or the approval agency?

A2. PHMSA does not have a preference. Under § 178.503(a)(8), the non-bulk, performance-oriented packaging may be marked by either: (1) the manufacturer (as defined in § 178.2); or, (2) the approval agency (as described in § 107.402(c)). The marking per § 178.503(a)(8) indicates the responsible party who certifies that the packaging was manufactured to a successfully-tested design type and complies with all applicable requirements of Part 178.