Northern Air Cargo, Inc. — Hazardous Materials Safety Interpretation

Page 1S. Departmer f Transportatio Washington, D.C. 20590 400 Seventh Street, S.W. Pipeline and Administration Hazardous Materials Safety APR 4 2007 Mr. Mark Smith Ref. No. 06-0228 3900 Old International Airport Rd. Northern Air Cargo, Inc. Anchorage, AK 99502 Dear Mr. Smith: This responds to your September 27, 2006 letter requesting clarification of the consumer commodity exceptions under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask about the applicability of the consumer commodity exception to packages of battery fluid shipped with snowmobiles and all-terrain vehicles. Under the HMR, a consumer commodity is defined as a material that is packaged and distributed in a form intended or suitable for sale through retail sales agencies or instrumentalities for consumption by individuals for purposes of personal care or household use (see § 171.8). This definition includes materials that are suitable for retail sale even if not specifically so intended and that may, in fact, be used in some other fashion. Thus, a shipment of battery fluid classed as a corrosive (Class 8) material, may be renamed "Consumer commodity" and reclassed and transported as an ORM-D Packing Group II or III, UN2796, that meets the definition of a consumer commodity material provided it meets the packaging and quantity limitations in § 173.154. In a final rule published on March 22, 2006 (71 FR 14598) under Docket HM-228, we amended the HMR to clarify air transportation requirements for hazardous materials shipments. Among other revisions, we revised requirements applicable to consumer commodities to clarify that hazardous materials that are forbidden for transportation by revised those sections of the HMR that permit certain hazardous materials to be aircraft may not be transported on board aircraft as consumer commodities. Further, we transported as limited quantities to clarify that only hazardous materials authorized for transportation on board passenger-carrying aircraft may be transported as limited quantities on board passenger-carry aircraft. We also clarified that for limited quantities transported on board passenger-carrying aircraft, the requirements in § 173.27 also apply to the shipment, including the quantity limitations in § 173.27(f). Because a shipment must conform to the applicable limited quantity provisions to qualify for the consumer commodity exception, the quantity limitations in § 173.27(f) will apply to consumer 173.154 060228 173.27 (A)#

Page 2for your information. commodity shipments on board passenger aircraft. A copy of the final rule is enclosed Finally, you did not supply information about the vehicles; however, an internal internal combustion engine is subject to the HMR if the engine or fuel tank contains a combustion engine, self-propelled vehicle, or mechanized equipment containing an liquid or gaseous fuel, is equipped with a wet electric storage battery, or contains other hazardous materials subject to the requirements of the HMR. A battery powered vehicle contains other hazardous materials. These vehicles must be assigned the proper shipping or equipment is subject to the HMR if it is equipped with a wet electric storage battery or name "Vehicle, flammable gas powered," UN3166 or "Vehicle, flammable liquid sodium batteries, or lithium batteries that are transported with the batteries installed must powered," UN3166. Vehicles, machinery and equipment powered by wet batteries, powered equipment," UN3171. Reclassification to "Consumer commodity" is not be assigned the proper shipping name "Battery-powered vehicle," UN3171 or "Battery- authorized for these vehicles. I hope this information is helpful. Please contact this office if you have additional questions. Sincerely. Hattie L. Mitchell Office of Hazardous Materials Standards Chief, Regulatory Review and Reinvention Enclosure#

Page 3McIntyre 173.154 NORTHERN AIR CARGO Exceptions 06-0228 September 27, 2006 Director, Office of Hazardous Materials Standards Edward T. Mazzullo U.S. Department of Transportation 400 7* St. S.W. Pipeline and Hazardous Materials Safety Administration Washington D.C. 20590-0001 RE: Reclassification of Battery fluid, acid 8 UN 2796 II to Consumer Commodity ORM-D Dear Mr. Mazullo, In a letter dated 01 Aug 95, the US Department of Transportation (DOT) allowed limited quantities of Battery fluid, acid UN 2796 II, to be reclassed as a consumer commodity ORM-I naterial. This interpretation does not seem to be consistent with the HMR in its definition of consumer commodity in 171.8. Also stated in the letter from the submitter, it was not intended that this material be used for personal care or household use. There are many items that are packaged for retail sale and sold through retail sales agencies but are unable to meei the definition of a consumer commodity ORM-D. One example would be a Battery, wet, filled with acid 8 UN2794 III, it poses less of a hazard for transportation, has far greater availability and are purchased by far more individuals than battery acid itself, but is not a consumer commodity for lack of meeting the definition. This was brought to our attention when we found hidden, undeclared packages of battery fluid abels the crane and had been ales eidall dirain past cies condition. test ada maid and investigation is continuing. snowmobile was a consurner commodity ORM-D-AÍR marking. Further research brought this After this, we started receiving snowmobiles for air transport and on the crating of the interpretation to our attention and the concern associated with it. The battery fluid boxes inside labeled for proper air transport as Battery fluid, acid 8 UN 2796 II but are being reclassed as the crates are already packaged in specification combination packages, marked and (most are) ORM-D consumer commodity (907) 243-3331 NORTHERN AIR CARGO, INC. 3900 OLD INTERNATIONAL AIRPORT RD. ANCHORAGE, AK 99502 (800) 727-2141 FAX (907) 249-5190 www.NORTHERNAIRCARGO.COM#

Page 4NORTHERN AIR CARGO As an air carrier, this concerns us. Given the regulation classification of a consumer commodity limited to the 1L quantity limitation per package listed in column 9a of the HMT, a shipper can ORM-D material, one can take a limited quantity of Battery fluid, acid 8 UN2796 II, now not loaded in an inaccessible location without concern to quantity limit, accessibility or segregation As is the concern with Battery acid, there is also a similar concern with all other hazard class and, on a small scale, does take place. This seems to be a 'loophole' to circumvent the HMR I do not know if this is the intent of the regulations to allow this, but this is what is permissible restrictions listed in column 9a. There is new wording in the HMR for a consumer commodity, which states that in order for an how would this new wording reign in consumer commodity materials if reasonable quantity item to be considered a consumer cornmodity, it must be able to fly passenger aircraft. If so, restrictions are not included that would be more in line with column 9a in the HMR? A much clearer definition of consumer commodity is needed. advantage of in a region where most villages rely solely on snowmobiles, all terrain vehicles and With this interpretation, if it were to become common knowledge, one can see it being taken many common hazardous items. Here in Alaska we rely heavily on air transport for everyday basic needs, but not at the risk of passenger and aircrew safety. If any further information or clarification is needed, please feel free to contact me at: 907-243-3331 Thank you for your consideration in this matter, Mark Smith Hazardous Materials Northern Air Cargo (907) 243-3331 NORTHERN AIR CARGO, INC, 3900 OLD INTERNATIONAL AIRPORT RD. ANcHorage, AK 99502 (800) 727-2141 FAX (907) 249-5190 Www.NORTHERNAIRCARGO.COM *...#