Wiley Rein & Fielding LLP — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportatior Washington, D.C. 20590 400 Seventh Street, S.W. lazardous Materials Safet ipeline ant Administration APR 6 2007 Mr. George A. Kerchner Ref. No. 06-0261 1776 K Street, NW Wiley Rein & Fielding LLP Washington, DC 20006 Dear Mr. Kerchner: This is in response to your November 1, 2006 letter requesting clarification under the Hapmenus Malarie roy alains He rammER liquid powered Specificaty. you ask for clarification of requirements when shipping the buoy domestically and internationally using different modes of transportation. You describe the contents of the buoy, which has an internal combustion engine, as flammable liquid powered, 9, UN3166." Under § 173.22 of the HMR, it is the shipper's responsibility to properly classify and lowever, based on the information you provided, it is our opinion that the buoy shoul lescribe a hazardous material. This office generally does not perform this function be described as "Engines, internal combustion, 9, UN3166." Your questions are paraphrased and answered as follows: Q1. Is the buoy excepted from regulation when shipped domestically by motor vehicle or rail car pursuant to § 173.220(g)? Al. For transportation by motor vehicle or rail car, provided the fuel tank is securely against short circuits and leakage (or removed and packaged separately under § 173.159). closed, the batteries securely installed, fastened in an upright position, and protected and other hazardous materials, if any, which are integral components are securely installed, mechanical equipment containing an internal combustion engine and a flammable liquid fuel tank is not subject to any other requirements under the HMR (see § 173.220). compliant with § 173.220 pursuant to § 176.905(i)(2)? Q2. Is the buoy excepted from regulation when shipped domestically by vessel when 173.220 060261#

Page 2A2. For transportation by vessel, provided there are no leaks in any portion of the fuel system, the mechanical equipment is not subject to any other requirements under the HMR Q3. What markings are required when the buoy is shipped by aircraft, both domestically and internationally? § 173.220 are not subject to the marking requirements of the HMR (Subpart D of Part A3. Except as provided in $ 173.220(e)(2), shipments made under the provisions of 172). Under the ICAO TI, Special Provision A87 excepts articles, which are not fully enclosed by packaging, crates or other means that prevent ready identification, from the marking requirements of 5;2. Mechanical equipment packed (fully enclosed) in a non- specification crate would be subject to the marking requirements. Mechanical equipment secured to a pallet (and readily identified) would not be subject to the marking requirements. Q4. Is a Class 9 label required when the buoy is shipped by aircraft, both domestically and internationally? $ 173.220 are not subject to the labeling requirements of the HMR (Subpart E of Par 172). Under the ICAO TI, Special Provision A87 excepts articles, which are not fully enclosed by packaging, crates or other means that prevent ready identification, from the labeling requirements of 5:3. Mechanical equipment packed (fully enclosed) in a non- specification crate would be subject to the labeling requirements. Mechanical equipment requirements. (without UN specification packaging) when shipped by aircraft, both domestically and Q5. May the buoy be shipped in non-specification packaging or secured to a pallet internationally? Instruction 900. Q6. May diesel fuel remain in the tank in the buoy when shipped by aircraft, both domestically and internationally? A6. A fuel tank for mechanical equipment that contains a Class 3 diesel fuel must be drained and securely closed, except that up 500 mL (17 ounces) of residual fuel may remain in the tank provided the fuel tank is securely closed. A quantity of Class 3 diesel fuel greater than 500 mL may remain in mechanical equipment under the condition outlined in § 173.220(b)(4)(iii). Under the ICAO TI. mechanical equipment must be#

Page 3shipped in accordance with Packing Instruction 900(a). Accordingly, Class 3 diesel fuel must be drained from the tank of an internal combustion engine in mechanical equipment. I hope this information is helpful. Please contact us if you require additional assistance.#

Page 4WRF, LLP FAX CTR Fax: 202-719-7049 Nov 15 2006 17:12 P. 02 Der kinderen Wiley Rein & Fielding LLP {|13.159 $113:220 Applicability WASHINGTON, DC 20006 1776 K STREET NW November 15, 2006 06-0261 202.719.4109 George Kerchner FAX PHONE 202,719.7000 gkerchnier@wrf.com 202.719.7049 Virginis Office Mr. Edward Mazzullo SUITE 6200 7925 JONES BRANCH DRIVE Director of Hazardous Materials Standards PHONE MCLEAN, VA 22102 Pipeline and Hazardous Materials Safety Administration FAX 703.905.2800 U.S. Department of Transportation 703.905.2820 400 7* Street, SW Washington, DC 20590 www.wrf.com Re: Shipping Vehicle, flammable liquid powered Dear Mr. Mazzullo: large buoy that contains the following materials: I am writing to request a clarification on the shipping requirements for a #2 diesel fuel with a flash point of >125° F O. Less than one gallon of anti-freeze/coolant Three gallons of lube oil arrangement (The batteries are marked NONSPILLBALE and meet the 6V sealed (nonspillable) lead acid batteries connected in a series/parallel testing requirements in 49 CFR 173.159(d)(3) and 173.159(d)(4).) The system is a sealed pressure vessel and weighs approximately 3200 A bladder-type 32 gallon fuel tank pounds Each unit will be secured to a pallet for shipment. Based on our review of the U.S. hazardous materials rogulations and ICAO liquid powered" with an assigned Hazard Class 9 and identification (UN) number of Technical Instructions, it appears the buoy is classified as a "Vehicle, flammable for shipping the buoy domestically and internationally: UN3166. Therefore, we have the following questions regarding the requirements 1. Is the buoy excepted from regulation when shipped domestically by motor vehicle and rail car pursuant to 49 CFR 173.220(g)? 2. Is the buoy excepted from regulation when shipped domestically by vessel because it meets the requirements noted above and 49 CFR 176.905(i)(2)?#

Page 5WRF, LLP FAX CTR Fax: 202-719-7049 Nov 15 2006 17:12 P. 03 Wiley Rein & Fielding up Page 2 November 15, 2006 3. When shipped domestically and internationally by aircraft the buoy will be offered as "Vehicle, flammable liquid powered," packed in a non- specification crate or secured to a pallet, and the diesel will remain in the fuel tank. a) Are any of the following markings required when shipped by NONSPILLABLE? aircraft: UN number, shipping name, orientation arrows, c) May the buoy be packed in a non-specification crate or secured to'a b) Is a Class 9 label required when shipped by aircraft? pallet without the use of any UN specification packaging when d) Is it acceptable for the diesel to remain in the tank when shipped by shipped by aircraft? aircraft? * questions regarding these issues, I can be reached at 202.719.4109 or Thank you for taking the time to address these questions. If you have gkerchner@wrf.com. Sincerely, George A. Kerchiner George A. Kerchner#