{"operation":"document","citation":"01-0290","title":"URS Corporation — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2002-05-06","effective_on":null,"summary":"01-0290 response to URS Corporation concerning 173.6.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-01-0290.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-01-0290.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-01-0290","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2001/010290.pdf","body":"<<<PAGE 1>>>\n\n•\nU.S. Department\nof Transportation\nMAY\nWashington, D.C. 20590\n400 Seventh St., S.W.\nResearch and\niБ 2002\npecial Program\ndministratio\nMr. Andrew Romach\nRef. No. 01-0290\nP.O. Box 13000\nURS Corporation\nResearch Iriangle Park, NC 27709\nDear Mr. Romach:\nThis is in response to your letter requesting clarification of\n49 CFR Parts 171-180): regarding the materials of trade exceptions\nthe requirements under the Hazardous Materials Regulations\nprepared for over-the-counter sales of hazardous materials.;\nin $ 173.6 and whether a shipping paper (bill of lading). must be\nhave framed our response in the following series of questions and\nanswers.\nQ1.\ncounter sales of hazardous materials?\nDo the materials of trade exceptions apply to over-the-\nrequirements in the HMR (including shipping papers) do not apply..\nIf all the requirements in § 173.6 are met, other\n22.\nresponsible to inform the operator of a motor vehicle of the\nFor purposes of the materials of trade exceptions, who is\nrequirements in § 173.6, and that the motor vehicle contains\nhazardous materials,\nincluding any reportable quantities?\nA2.\nThe employer of the motor vehicle operator is responsible\nfor providing this information\nto the operator.\nHowever, in\npractice, it may also be necessary\nfor an over-the-counter sales\nemployee to be able to distinguish between those types and\nquantities of hazardous materials that\nqualify for the materials\nwhether the materials of trade exceptions\nof trade exceptions, and those\nnot, in\norder to determine\napply.\n03.\nIf the\nrequirements of the materials of trade exceptions are\nnot met (for example,\nthe total\nquantity exceeds 440 pounds gross\nweight or an individual package\nis larger than allowed), do the\nHMR apply to over-the-counter sales of hazardous materials?\n173,6\n010290\n\n<<<PAGE 2>>>\n\nThe seller of hazardous materials over-the-counter is\n\"offeror\" who is responsible for assuring that the materials\nare packaged, marked, labeled, and described on a shipping paper\nas required by the HMR whenever the over-the-counter sales\nemployee knows (or has reason to know) that the customer will\ntransport the hazardous material in commerce (such as the\nis transporting the hazardous material as part of a\nbusiness). (Note that other\nexceptions,\nsuch as those for\nlimited quantities and consumer commodities, may be available.)\nIn this situation, the over-the-counter sales employee must be\ntrained as required in Subpart H of Part 172.\nQ4.\nDoes a purchaser of hazardous materials over-the-counter\nbecome the shipper (offeror) responsible for compliance with the\nHMR when it \"takes ownership\" of the materials upon purchase?\nUnder most circumstances, the purchaser of hazardous materials\nThe status of an offeror does not depend on ownership.\nover-the-counter is a carrier (or transporter) who. may. not accept\nHMR but who. is not responsible for performing the\ntransport hazardous materials that are not in compliance with\npurchasers of hazardous materials whether they will be\nQ5. Is an over-the-counter sales employee responsible for asking\ntransporting the materials in commerce?:\nto ask this specific question, but it may be appropriate under\nThe HMR do not require a person selling hazardous material\nthe circumstances\n. of over-the-counter sales:: The over-the-\ncounter sales employee must consider readily apparent facts that\nmaterials in commerce... The employee would not be \"absent: the\nindicate a\ncustomer will transport the purchased hazardous\nhazardous material in commerce when a reasonable person would\nknowledge\" that its customer will transport the purchased\nrealize that the customer is purchasing the hazardous materials\nfor use at (or delivery to) another location as part of any type\nof business enterprise.\nDoes an over-the-counter sales employee need to know whether\na purchaser of hazardous materials will be transporting the\nmaterials in interstate commerce?\nA6. No. The distinction between interstate and intrastate\nrefrigeration Supplies, Inc. (ARS) is no longer relevant because,\ncommerce in RSPA's January 19, 1996 letter to Arizona\nafter October 1, 1998, the HMR apply to all transportation in\n\n<<<PAGE 3>>>\n\ncommerce. The passage you quote from that letter should be read\nto delete the word \"interstate\" as follows:\nIf an offeror makes an over-the-counter sale to a\nustomer who then transports the hazardous material 11\nis own vehicle and the offeror has reason to know that\nthe offeror must\nknowledge of the customer in commerce, an offeror need\nnot provide a shipping paper.\nRSPA's specific answer to the question raised by ARS whether it\nis responsible for preparing a shipping paper when it makes over-\nof that letter, must now be read:\nthe-counter sales of refrigerant gases, in the second paragraph\nif the refrigerant gas, which I presume is: a Class 2\nmaterial,\" is offered to al] carrier, the answer is yes;\nthe original 'offeror or shipper of the hazardous\nmaterial must prepare a shipping paper unless other\narrangements for this responsibility are made.\nif you need additional information.\nI hope this information is helpful. Please contact this office\nSincerely,\nSland 7. Mazulle\nEdward I. Mazzullo\nDirector, Office of Hazardous\nMaterials Standards\n\n<<<PAGE 4>>>\n\nFROM: URS CORPORATION\nFAX NO. ÷\n9194611371\n11-08-01 10:38A P.61\nURS\nMCIntyre\nNovember 7, 2001\n$173.66+\nMOT *171\nARRLICABILITY\nMr. Ed Mazzullo, Director\n01-0290\nOffice of Hazardous Material Standards\nResearch and Special Programs Administration\nU.S. Department of Transportation\n400 7th Street, SW\nWashington, DC 20590-0001\nFAX: (202) 366-3012\nDear Mr. Mazzullo:\nI am writing to you to request a written regulatory interpretation about the following situation.\nWould a company that conducts over-the-counter sales of refrigerant gases and other heating,\nventilation, air conditioning (HVAC) supplies be responsible for providing a hazardous material\nbill of lading to contractors and installation/service technicians who pick up such items, if such\nitems meet the definition of a DOT hazardous material?\nAlso, 1 am requesting clarification about a paragraph in 49 CFR 173.6(c)(4) found in the\nMaterials of Trade Exception section, which states:\nThe operator of a motor vehicle that contains a material of irade must be\ninformed of the presence of the hazardous material (including whether the\npackuge contains a reportable quantity) and must he informed of the\nThis paragraph is not clear about who is responsible for informing the operator about the\nrequirements of this section.\npresence of hazardous material. For a contractor or installation/service technician, it would seem\nthat it is the HAZMAT employers responsibility to ensure that its HAZMAT employee(s) are\ntrained sufficiently to make the distinction about which HAZMAT items qualify for the MOTs\nexception and which ones do not.\nI am also requesting clarification about the statement appearing in a regulatory clarification\nissued by Ms. Hattie Mitchell on January 19, 1996, to Mr. Joe Ward of Arizona Refrigeration\nThis interpretion to depte blowing ta MoTs excepion (62 FR 1216, January 8, 197).\nIf an offerer (sic] makes an over-the-counter sale to a customer who then\ntransports the hazardous material in his own vehicle and the afferor has reason to\nknow thar the customer is engaged in interstate commerce, the offeror must\nEveNemit or shipping per per reguremen thosen the tomi need suprovida a\nshipping paper.\n.0. Box 13000\nJRS Corporation\ntesearch Triangle Park, NC 2770\nMorrisville, NC 27560\ne0O Perimeter Park Driv\nTel: 919.461.1100\nFax: 919.461.1416\n\n<<<PAGE 5>>>\n\nFROM: URS CORPORATION\nFAX NO.:\n9194611371\n11-08-81 10:58A P.82\nURS\nDOT/RSPA\nMr. Ed Mazzullo\nNovember 5, 2001\nPage 2 of 2\nDoes it become the responsibility of each supply house employee to ask the purchaser whether or\nnot he is engaged in interstate commerce--whether he drives his vehicle over the state line, or\nwhether he works for a national HVAC company that participates in interstate connerce?\nFurther clarification of the statement: \"Absent the knowledge of such involvement of the\ncustomer in interstate commerce...\" is needed. Does this interpretation mean that unless the\ncommerce the employee remains \"absent the knowledge.\"\ncustomer tells the supply house employee conducting the sale that he is involved in interstate\ntaking ownership of the items at the time of pickup. These contractors and installation/service\nContractors and installation/service technicians purchase HAZMAT items at the supply house,\ntechnicians are in the HVAC repair business rather than the transportation business, so they are\nthey meet the requirements set out under MOTs, they are excepted from HAZMAT paperwork\nable to take advantage of the Materials of Trade (MOTs) exception in 49 CFR 173.6. So long as\nrequirements, as well as marking, labeling, packaging requirements.\nOccasionally, purchased items may exceed the allowable quantities under MOTs. The contractor\nor installation/service technician may purchase and transport cylinders of refrigerant; with\nwelding supplies (cylinders of acetylene and oxygen) already onboard their vehicle, they could\nexceed the allowed 440-pound MOTs limit. Infrequently, they may purchase single package\n440 pounds. In these cases, the MOTs exception would not apply based on the quantity of\nvolumes greater than 8 gallons or a combined number of refrigerant gas cylinders in excess of\nmaterial transported. As stated above, these hazardous materials are used to perform IIVAC\ninstallation/repair work. In other instances, an HVAC company may arrange for a courier to\ncontractors/installers/service technicians.\ncome to the supply house to pick up HVAC installation/service parts and supplies for the\nIf the contractor or service technician takes ownership of the HAZMAT at the time of purchase,\nthen it follows that the contractor or service technician would become the shipper when he\nbe the contractor or service technician's responsibility to prepare it.\ntransports the material off site. Therefore, if a HAZMAT bill of lading were required, it would\nIf you have any questions concerning this request for regulatory interpretation, please call mo\ndirectly at (919) 461-1220.\nAndrow N. Romach\nURS Corporation\nCorporate Regulatory Manager","truncated":false,"body_characters":10236}