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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 #22-0053

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

Interpretation Response Details

Response Publish Date:

Company Name: Alston & Bird

Individual Name: Meaghan G. Boyd

Location State: GA Country: US

View the Interpretation Document

Response text:

September 14, 2022

Meaghan G. Boyd
Alston & Bird
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA  30309

Reference No. 22-0053

Dear Ms. Boyd:

This letter is in response to your May 27, 2022, letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to packages with mixed contents of hazardous materials. You state that your client operates a warehouse and distribution center that receives incoming retail boxes—not marked or labeled—from a third-party carrier shipped on behalf of a retail company. These retail boxes contain various quantities of loose limited quantity packages of different hazard classes—including lithium batteries on some occasions—and non-hazardous materials that are not packaged in an organized manner (e.g., liquids are not packaged upright, fully regulated hazardous material packages are mixed in with limited quantity material packages, etc.). The shipping documents show the client warehouse and distribution center's address as the third-party destination, where the retail company is the shipper and recipient. Moreover, the shipping documents do not indicate that hazardous materials may be present inside the retail boxes. Lastly, you explain that your client wants to provide a third-party shipping service—at the direction of the retail company—and wants to ensure compliance with the requirements of the HMR and ask related questions. You note that the retail boxes are not opened in the presence of the third-party carrier which, for the purpose of the HMR, indicates unloading incidental to movement has not occurred.

You also provide photographs showing how these retail boxes are packaged with various hazardous materials and non-hazardous materials.

We have paraphrased and answered your questions as follows:

Q1. You ask whether your client is performing pre-transportation functions when the retail boxes are opened and the inner packages are segregated and classified, in consideration that those goods are intended for transportation again sometime in the future.

A1. This is dependent on the specific scenario. For instance, opening the retail box and separating the inner packages for on-site storage would not be considered a pre-transportation function subject to the HMR. Whereas, preparing those inner packages for transportation by performing functions such as determining appropriate hazard communication and packaging would be considered a pre-transportation function. Please refer to § 171.8 for the definition and meaning of pre-transportation function.

Q2. You ask whether your client is performing transportation functions under the scope of storage incidental to movement when the retail boxes are opened and the inner packages are segregated and classified, in consideration that those goods are intended for transportation again sometime in the future.

A2. The answer is no. Based on the information you provided, it is the opinion of this Office that the hazardous material is no longer in transportation in commerce and thus this activity is not considered storage incidental to movement. Hazardous material at its final destination—as indicated on the shipping documents—is no longer in transportation, and storage of a hazardous material at the final destination is not storage incidental to movement (see § 171.1(c)(4)).

Q3. You ask whether your client would be responsible for reporting undeclared hazardous materials after the third-party carrier has departed the warehouse and distribution center for which unloading incidental to movement did not occur, and later it was discovered that the retail boxes contained such materials during the performance of pre-transportation or during storage incidental to movement functions.

A3. Regarding your specific line of questioning, the answer is no. Because the third-party carrier has delivered the retail boxes to your client's warehouse and distribution center and has departed the premises, the shipment is no longer in transportation in commerce, and a Hazardous Materials Incident Report is therefore not required. Performance of pre-transportation functions is not considered "in transportation in commerce."a Performance of a transportation function during storage incidental to movement is "in transportation in commerce" and would require reporting upon discovery of undeclared hazardous material. However, as noted in answer A2, the scenario as presented in your letter would not be considered storage incidental to movement.

Q4. You ask whether a retail box of mixed, loose goods that includes hazardous materials—as illustrated by the photographs you provided—meets the definition of "unitized" as described in § 173.156(b)(1).

A4. The answer is no. Although the HMR does not define the term "unitized," it is our understanding that the term means "to form or convert into a unit." Based on the photographs you provided, the inner packages would not be considered "unitized"b because the contents inside the retail boxes are not packaged in a manner forming a unit or unified whole.

Q5. You ask whether limited quantity hazardous materials shipped in accordance with § 173.156(b)(1) are considered "undeclared hazardous material" as defined in § 171.8 if the package does not comply with the packing requirements found in §§ 173.156(b), 173.24, or 173.24a, and does not display a limited quantity marking.

A5. An "undeclared hazardous material" means a hazardous material that is subject to any of the hazard communication requirements such as shipping papers, marking, labeling, and placarding in Part 172 or an alternative marking requirement in Part 173, but has been offered for transportation in commerce without any visible indication to the person accepting the hazardous material for transportation that a hazardous material is present, on either an accompanying shipping document, or the outside of a transport vehicle, freight container, or package. Compliance with §§ 173.24 and 173.24a has no bearing on the determination of an undeclared hazardous material.

However, compliance with § 173.156(b)(1) is relevant for the determination of an undeclared hazardous material. A condition for not having to mark in accordance with Part 172, Subpart D is that the limited quantity material must be unitized in cages, carts, boxes, or similar overpacks. As stated in answer A4, the contents inside the retail boxes were not packed in a manner forming a unit or unified whole, and thus the transport of the materials would still be subject to marking requirements (i.e., the limited quantity marking). In such a case, the retail boxes would be considered undeclared hazardous materials because of the absence of the limited quantity marking.

I hope this information is helpful. Please contact us if we can be of further assistance.


Dirk Der Kinderen
Chief, Standards Development Branch
Standards and Rulemaking Division

171.1(c)(4), 171.8, 173.24, 173.24a, 173.156(b), 173.156(b)(1)

a In accordance with 171.1(c), transportation of a hazardous material in commerce begins when a carrier takes physical possession of the hazardous material for purpose of transporting it and continues until the package containing the hazardous material is delivered to the destination.

b Merriam-Webster's dictionary defines the term “unitize” to mean "to form or convert into a unit."

Regulation Sections

Section Subject
171.1 Applicability of Hazardous Materials Regulations (HMR) to persons and functions
171.8 Definitions and abbreviations
173.156 Exceptions for limited quantity and ORM
173.24 General requirements for packagings and packages