{"operation":"document","citation":"04-0265","title":"Mr. Peter B. O\"Connell — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2005-02-17","effective_on":null,"summary":"04-0265 concerning 173.6.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0265.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0265.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0265","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2004/040265.pdf","body":"<<<PAGE 1>>>\n\nof Transportation\nU.S. Department\n400 Seventh St., S.W.\nWashington, D.C. 20590\nSpecial Programs\nResearch and\nFEB 17 2005\nAdministration\nMr. Peter B. O'Connell\nRef. No. 04-0265\nAttorney At Law\n130 Washington Avenue\nAlbany, New York 12210\nDear Mr. O'Connell:\nThis responds to your letter to Mr. James Simmons, Federal Motor Carrier Safety Administration\n(FMCSA), regarding the Material of Trade (MOTS) exceptions under the Hazardous Materials\nRegulations (HMR; 49 Parts 171-180) as they apply to towing companies providing roadside\nservices to motorists. Your letter was referred to this office for response.\nYou said that many towing companies (particularly those that participate in motor clubs) provide\nroadside services to motorists. As part of these services, towing companies are often required to\ntransport gasoline in containers of less than 8 gallons for the purpose of refueling their customers'\nvehicles. The gasoline may be transported by tow trucks of over 10,000 pounds Gross Vehicle\nWeight Rating (GVWR) or by service vehicles (i.e., pickup trucks, vans, SUVs) of less than\n10,000 pounds GVWR. The gasoline may either be sold or given to the customer as part of a\nservice contract. Assuming that the operators of the transport vehicles are aware of the presence\nquestions as follows:\nof a hazardous material and that the gasoline containers are properly secured, you asked\nQl. Does gasoline that is transported in a commercial vehicle for the purpose of refueling a\ncustomer's vehicle qualify as MOTS?\nAl.\nYes. In accordance with §171.8, a material of trade is a hazardous material carried on a\nmotor vehicle by a private motor carrier in direct support of a principal business that is\nother than transportation by motor vehicle.\nQ2.\nDoes a fuel can that meets the requirements of ASTM F852-99 satisfy the packaging\nrequirements in §173.6?\nA2.\nShippers must package gasoline shipped under the MOTS exception in packagings that\nconform to either the Occupational Safety and Health Administration's (OSHA)\nrequirements in 29 CFR §§1910.106(d)(2) or 1926.152(a)(1), or to the requirements of\nthe HMR (See §173.6(b)(4)). Neither the OSHA standards nor the HMR reference\nASTM F852-99.\nQ3.\nAs an alternative to question 2, is there a list of fuel cans that have been approved by the\nFMCSA and/or OSHA?\n173.6\n040265\n•\n\n<<<PAGE 2>>>\n\nA3.\nUnder the HMR, non-bulk packagings authorized for the transportation of gasoline are\nare specified in §173.150(b). Questions concerning packagings authorized under the\nspecified in §173.202. Packagings authorized for limited quantity shipments of gasoline\nOSHA standards should be directed to OSHA.\nQ4.\nIs the driver of a vehicle that is transporting gasoline in intrastate commerce under the\nMOTS exception required to carry a medical card if the transport vehicle is over 10,000\npounds GVWR or under 10,000 pounds GVWR?\nA4.\nThe Department of Transportation's Federal Motor Carrier Safety Administration\nualitications for commercial drivers.\nualisation her ency reia tribers. The driver quit eula rons emens in 49 CFl\nPart 391 do not apply to intrastate commerce; note, however, that the State in which you\noperate may have similar requirements. You may contact the FMCSA's Hazardous\nMaterials Division at (202) 366-6121 for information on this issue.\nI hope this satisfies you inquiry. If we can be of further assistance, please contact us\nSincerely,\nohn A. Gale\nChief, Standards Development\nOffice of Hazardous Materials Standards\ncc: Bill Quade, FMCSA\n\n<<<PAGE 3>>>\n\n(518) 436-7202\nPETER B. O'CONNELL\nFAX: (518) 436.7203\nATTORNEY AT LAW\nALBANY, NEW YORK 12210\n130 WASHINGTON AVENUE\nEngrum\n$ 173.6\nMaterial of Trade\n04 - 0265\nOctober 8. 2004\nJames Simmons\nFederal Motor Carrier Safety Administration\n400 7ih Street S.W.\nRoom 8310 MC-ECH\nWashington, D.C. 20590\nRE: MATERIALS OF TRADE\nDear Mr. Simmons:\nI am counsel to the Towing and Recovery Association of America (TRAA),\nEmpire State Towing\nRecovery Association (ESTRA) and the Conference of\nNortheastern Towing Associations (CNTA): Last week, you referred me to a HAZ MAT\n(MOT) exemption for hazardous materials. I did not find a satisfactory explanation on the\nwebsite in response to several questions that I posed concerning the Materials of Trade\nsite and now ask that you forward this letter to the appropriate parties for an official\nopinion on the questions that I posed.\nAs you are undoubtedly aware, many towing companies (particularly those that\nparticipate in motor clubs) provide roadside services to motorists. As part of these\nservices, they are often required to transport gasoline in containers of less than 8 gallons\nby tow trucks of over 10,000 pounds GWR or by service vehicles (i.e., pickup trucks\nfor the purpose of refueling their customers\" vehicles. The gasoline may be transported\nvans, SUVs) of less than 10,000 pounds GYWR. It may either be sold to the customer or\ngiven to the customer as part of a service contract.\nof a hazardous material and that the gasoline containers are properly secured, the\nAssuming that the operators of the transporting vehicles are aware of the presence\nquestions presented are:\n1.\nDoes gasoline that is transported in a commercial vehicle for the purpose of\nDoes a fuel can that has been classified by Underwriters Laboratories as\nrefueling a customer's vehicle qualify as a material of trade?\nrequirements?\nsatisfying the requirements of ASTM F852-99 conform to FMCSA or OSHA\n\n<<<PAGE 4>>>\n\n3. As an alternative to question 2, is there a list of fuel cans that have been\napproved by FMCSA and/or OSHA?\n4. Is the driver of a vehicle that is transporting gasoline in intrastate commerce\nunder the above circumstances required to carry a medical card (a) if the\ntransporting vehicle is over 10,000 pounds GVWR or (b) under 10,000\npounds GVWR?\nAs I mentioned in our previous telephone conversation, these are not hypothetical\nelsewhere) that interpret Federal law as: (1) not considering gasoline that is given or sold\nquestions, as there are certain law enforcement agencies in New York State (and possibly\nto a third party as a MOT; (2) not recognizing fuel cans that have been classified by\namount of a hazardous material to carry a medical card. A prompt response would.\nUnderwriters Laboratories, and (3) requiring a driver of a vehicle that contains any\ntherefore, be appreciated.\nhesitate to contact me if you require additional information with respect to this request.\nThank you for your courtesy and consideration in this matter, and please do not\nSincerely.\nhip. Colonel\ncc: T/Sgt Ray Weiss (NYS State Police)\nSgt. Tom Fuller (NYS State Police)\nKevin O'Brien (NYS DMV)\nJohn Connolly (NYS DOT)\nBrian Temperine (FMSCA, NY Div. Admi'r)\nLawrence Minor (FMSCA)\nTRAA, ESTRA, CNTA Boards of Directors\n\n<<<PAGE 5>>>\n\nQuestions\n1. Does gasoline that is transported in a commercial vehicle for the purpose of\nrefueling a customer's vehicle qualify as a material of trade?\na. RSPA interpretation\n2. Does a fuel can that has been classified by UL as satisfying the requirements of\nASTM F852-99 conform to FMCSA (should be RSPA) or OSHA requirements?\na. RSPA/OSHA interpretation\n3. Is there a list of fuel cans that have been approved by FMCSA (should be RSPA)\nand/or OSHA?\na. RSPA/OSHA interpretation\n4. Is the driver of a vehicle that is transporting gasoline in intrastate commerce\nunder the above circumstances required to carry a medical card:\ni. If the transporting vehicle is over 10,000 pounds GVW? or\nii. If the transporting vehicle is under 10,000 pounds GVW?\na. 49 CFR 391.41 does not apply to intrastate commerce; therefore FMCSA\nHowever, the state in which these companies operate may have a\ndoes not require a medical examiner's certification be carried, in this case.\nrequirement similar to the federal code stated above.\n\n<<<PAGE 6>>>\n\nMaterial of Trade:\n• Means a Hazardous Material, other than Hazardous Waste, that is carried on a motor\nvehicle -\n• (3) By a private motor carrier in direct support of a principal business that is\nother than transportation by motor vehicle.\n• Gasoline, UN 1203, Class 3, PG II\n• Special Provisions - 139 - NA\n• Exceptions - 150 - NA\n• Non-bulk Packaging - 202\n• Exceptions - §173.6\n• (a)(1)(ii) A material of trade is limited to the following: Class 3 material\ncontained in a package having a capacity less than 30L (8 Gallons)\n° (b)(4) A package must be made of metal or plastic and conform to the\nrequirements of this subchapter or to the requirements of 29 CFR\n1910.106(d)(2) or 1926.152(a)(1)\n• (c)(4) The operator of a motor vehicle that contains a material of trade must be\ninformed of the presence of the Hazardous Material\n• Non-Bulk Packaging Requirements - § 173.202\n• Steel jerrican: 3A1 or 3A2\n• Plastic jerrican: 3H1 or 3H2\n• Aluminum jerrican: 3B1 or 3B2\n• 49 CFR 390.5: Definition of Commercial Motor Vehicle: A motor vehicle that has any\nof the following characteristics:\n• A GVW >10,000 Ibs; or\n• Designed to or used to carry >8 passengers for compensation; or\n• Designed to or used to carry > 15 passengers, not for compensation; or\n• 49 CFR 391.41(a): A person shall not drive a commercial motor vehicle unless he/she\n• Used in the transportation of placardable amounts of Hazardous Materials\nis physically qualified to do so and, except as provided in § 391.67 (farm vehicles), has\non his/her person the original, or a photographic copy, of a medical examiner's\ncertificate that he/she is physically qualified to drive a commercial motor vehicle.\n• 29 CPR 1910.106(d)(2): Design, construction, and capacity of containers--(1) General.\nOnly approved containers and portable tanks shall be used. Metal containers and\nportable tanks meeting the requirements of and containing products authorized by\nchapter I, title 49 of the Code of Federal Regulations (regulations issued by the\nHazardous Materials Regulations Board, Department of Transportation), shall be\ndeemed to be acceptable.\n• (iii) Size. Flammable and combustible liquid containers shall be in accordance\nwith Table H-12, except that glass or plastic containers of no more than 1-gallon\ncapacity may be used for a Class IA or IB flammable liquid if:\n• (a)(1) Such liquid either would be rendered unfit for its intended use by\ncontact with metal or would excessively corrode a metal container so as\nto create a leakage hazard; and\n• (2) The user's process either would require more than 1 pint of a Class IA\nliquid or more than 1 quart of a Class IB liquid of a single assay lot to be\nused at one time, or would require the maintenance of an analytical\n\n<<<PAGE 7>>>\n\nstandard liquid of a quality which is not met by the specified standards of\nliquids available, and the quantity of the analytical standard liquid\nrequired to be used in any one control process exceeds one-sixteenth the\ncapacity of the container allowed under Table H-12 for the class of\nliquid; or\n• (b) The containers are intended for direct export outside the United States.\nContainer Type\nFlammable Liquids\nCombustible Liquids\nClass IA\nClass IB\nClass IC\nClass II\nClass III\nGlass or approved plastic\n1 pt\n1 qt\n1 gal\n1 gal\n1 gal\nMetal (other than DOT\ndrums\n1 gal\n5 gal\n5 gal\n5 gal\n5 gal\nSafety cans\n2 gal\n5 gal\n5 gal\n5 gal\n5 gal\nMetal drums (DOT\nspecifications)\n60 gal\n60 gal\n60 gal\n60 gal\n60 gal\nApproved portable tanks\n660 gal\n660 gal\n660 gal\n660 gal\n660 gal\nwhen packaged according to commonly accepted practices, shall be exempt from the requirements of Sec.\nNote: Container exemptions: (a) Medicines, beverages, foodstuffs, cosmetics, and other common consumer items,\n1910.106(d)(2) (i) and (ii).\n29 CFR 1926.152: Flarnmable and combustible liquids.\n• (a) General requirements. (1) Only approved containers and portable tanks shall be used\nfor storage and handling of flammable and combustible liquids. Approved safety cans\nor Department of Transportation approved containers shall be used for the handling and\nuse of flammable liquids in quantities of 5 gallons or less, except that this shall not\napply to those flammable liquid materials which are highly viscid (extremely hard to\npour), which may be used and handled in original shipping containers. For quantities of\none gallon or less, the original container may be used, for storage, use and handling of\nflammable liquids.\n\n<<<PAGE 8>>>\n\nFlammability\nOSHA Flammable\nLiquid Class\nFlash Point\nBoiling Point\nIA\n<73° F\n< 100ºF\nFlammable\nIB\n<73° F\n≥100°F\nIC\n73°F ≤100°F\n>100°F\nII\n100°F ≤140°F\nCombustible\nIIIA\n140°F ≤200°F\n≥200°F","truncated":false,"body_characters":12448}