URS Corporation — Hazardous Materials Safety Interpretation

Page 1• U.S. Department of Transportation MAY Washington, D.C. 20590 400 Seventh St., S.W. Research and iБ 2002 pecial Program dministratio Mr. Andrew Romach Ref. No. 01-0290 P.O. Box 13000 URS Corporation Research Iriangle Park, NC 27709 Dear Mr. Romach: This is in response to your letter requesting clarification of 49 CFR Parts 171-180): regarding the materials of trade exceptions the requirements under the Hazardous Materials Regulations prepared for over-the-counter sales of hazardous materials.; in $ 173.6 and whether a shipping paper (bill of lading). must be have framed our response in the following series of questions and answers. Q1. counter sales of hazardous materials? Do the materials of trade exceptions apply to over-the- requirements in the HMR (including shipping papers) do not apply.. If all the requirements in § 173.6 are met, other 22. responsible to inform the operator of a motor vehicle of the For purposes of the materials of trade exceptions, who is requirements in § 173.6, and that the motor vehicle contains hazardous materials, including any reportable quantities? A2. The employer of the motor vehicle operator is responsible for providing this information to the operator. However, in practice, it may also be necessary for an over-the-counter sales employee to be able to distinguish between those types and quantities of hazardous materials that qualify for the materials whether the materials of trade exceptions of trade exceptions, and those not, in order to determine apply. 03. If the requirements of the materials of trade exceptions are not met (for example, the total quantity exceeds 440 pounds gross weight or an individual package is larger than allowed), do the HMR apply to over-the-counter sales of hazardous materials? 173,6 010290#

Page 2The seller of hazardous materials over-the-counter is "offeror" who is responsible for assuring that the materials are packaged, marked, labeled, and described on a shipping paper as required by the HMR whenever the over-the-counter sales employee knows (or has reason to know) that the customer will transport the hazardous material in commerce (such as the is transporting the hazardous material as part of a business). (Note that other exceptions, such as those for limited quantities and consumer commodities, may be available.) In this situation, the over-the-counter sales employee must be trained as required in Subpart H of Part 172. Q4. Does a purchaser of hazardous materials over-the-counter become the shipper (offeror) responsible for compliance with the HMR when it "takes ownership" of the materials upon purchase? Under most circumstances, the purchaser of hazardous materials The status of an offeror does not depend on ownership. over-the-counter is a carrier (or transporter) who. may. not accept HMR but who. is not responsible for performing the transport hazardous materials that are not in compliance with purchasers of hazardous materials whether they will be Q5. Is an over-the-counter sales employee responsible for asking transporting the materials in commerce?: to ask this specific question, but it may be appropriate under The HMR do not require a person selling hazardous material the circumstances . of over-the-counter sales:: The over-the- counter sales employee must consider readily apparent facts that materials in commerce... The employee would not be "absent: the indicate a customer will transport the purchased hazardous hazardous material in commerce when a reasonable person would knowledge" that its customer will transport the purchased realize that the customer is purchasing the hazardous materials for use at (or delivery to) another location as part of any type of business enterprise. Does an over-the-counter sales employee need to know whether a purchaser of hazardous materials will be transporting the materials in interstate commerce? A6. No. The distinction between interstate and intrastate refrigeration Supplies, Inc. (ARS) is no longer relevant because, commerce in RSPA's January 19, 1996 letter to Arizona after October 1, 1998, the HMR apply to all transportation in#

Page 3commerce. The passage you quote from that letter should be read to delete the word "interstate" as follows: If an offeror makes an over-the-counter sale to a ustomer who then transports the hazardous material 11 is own vehicle and the offeror has reason to know that the offeror must knowledge of the customer in commerce, an offeror need not provide a shipping paper. RSPA's specific answer to the question raised by ARS whether it is responsible for preparing a shipping paper when it makes over- of that letter, must now be read: the-counter sales of refrigerant gases, in the second paragraph if the refrigerant gas, which I presume is: a Class 2 material," is offered to al] carrier, the answer is yes; the original 'offeror or shipper of the hazardous material must prepare a shipping paper unless other arrangements for this responsibility are made. if you need additional information. I hope this information is helpful. Please contact this office Sincerely, Sland 7. Mazulle Edward I. Mazzullo Director, Office of Hazardous Materials Standards#

Page 4FROM: URS CORPORATION FAX NO. ÷ 9194611371 11-08-01 10:38A P.61 URS MCIntyre November 7, 2001 $173.66+ MOT *171 ARRLICABILITY Mr. Ed Mazzullo, Director 01-0290 Office of Hazardous Material Standards Research and Special Programs Administration U.S. Department of Transportation 400 7th Street, SW Washington, DC 20590-0001 FAX: (202) 366-3012 Dear Mr. Mazzullo: I am writing to you to request a written regulatory interpretation about the following situation. Would a company that conducts over-the-counter sales of refrigerant gases and other heating, ventilation, air conditioning (HVAC) supplies be responsible for providing a hazardous material bill of lading to contractors and installation/service technicians who pick up such items, if such items meet the definition of a DOT hazardous material? Also, 1 am requesting clarification about a paragraph in 49 CFR 173.6(c)(4) found in the Materials of Trade Exception section, which states: The operator of a motor vehicle that contains a material of irade must be informed of the presence of the hazardous material (including whether the packuge contains a reportable quantity) and must he informed of the This paragraph is not clear about who is responsible for informing the operator about the requirements of this section. presence of hazardous material. For a contractor or installation/service technician, it would seem that it is the HAZMAT employers responsibility to ensure that its HAZMAT employee(s) are trained sufficiently to make the distinction about which HAZMAT items qualify for the MOTs exception and which ones do not. I am also requesting clarification about the statement appearing in a regulatory clarification issued by Ms. Hattie Mitchell on January 19, 1996, to Mr. Joe Ward of Arizona Refrigeration This interpretion to depte blowing ta MoTs excepion (62 FR 1216, January 8, 197). If an offerer (sic] makes an over-the-counter sale to a customer who then transports the hazardous material in his own vehicle and the afferor has reason to know thar the customer is engaged in interstate commerce, the offeror must EveNemit or shipping per per reguremen thosen the tomi need suprovida a shipping paper. .0. Box 13000 JRS Corporation tesearch Triangle Park, NC 2770 Morrisville, NC 27560 e0O Perimeter Park Driv Tel: 919.461.1100 Fax: 919.461.1416#

Page 5FROM: URS CORPORATION FAX NO.: 9194611371 11-08-81 10:58A P.82 URS DOT/RSPA Mr. Ed Mazzullo November 5, 2001 Page 2 of 2 Does it become the responsibility of each supply house employee to ask the purchaser whether or not he is engaged in interstate commerce--whether he drives his vehicle over the state line, or whether he works for a national HVAC company that participates in interstate connerce? Further clarification of the statement: "Absent the knowledge of such involvement of the customer in interstate commerce..." is needed. Does this interpretation mean that unless the commerce the employee remains "absent the knowledge." customer tells the supply house employee conducting the sale that he is involved in interstate taking ownership of the items at the time of pickup. These contractors and installation/service Contractors and installation/service technicians purchase HAZMAT items at the supply house, technicians are in the HVAC repair business rather than the transportation business, so they are they meet the requirements set out under MOTs, they are excepted from HAZMAT paperwork able to take advantage of the Materials of Trade (MOTs) exception in 49 CFR 173.6. So long as requirements, as well as marking, labeling, packaging requirements. Occasionally, purchased items may exceed the allowable quantities under MOTs. The contractor or installation/service technician may purchase and transport cylinders of refrigerant; with welding supplies (cylinders of acetylene and oxygen) already onboard their vehicle, they could exceed the allowed 440-pound MOTs limit. Infrequently, they may purchase single package 440 pounds. In these cases, the MOTs exception would not apply based on the quantity of volumes greater than 8 gallons or a combined number of refrigerant gas cylinders in excess of material transported. As stated above, these hazardous materials are used to perform IIVAC installation/repair work. In other instances, an HVAC company may arrange for a courier to contractors/installers/service technicians. come to the supply house to pick up HVAC installation/service parts and supplies for the If the contractor or service technician takes ownership of the HAZMAT at the time of purchase, then it follows that the contractor or service technician would become the shipper when he be the contractor or service technician's responsibility to prepare it. transports the material off site. Therefore, if a HAZMAT bill of lading were required, it would If you have any questions concerning this request for regulatory interpretation, please call mo directly at (919) 461-1220. Androw N. Romach URS Corporation Corporate Regulatory Manager#