{"operation":"document","citation":"07-0163","title":"Midwest Airlines, Air Cargo — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2007-11-26","effective_on":null,"summary":"07-0163 response to Midwest Airlines, Air Cargo concerning 171.8, 173.217.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-07-0163.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-07-0163.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-07-0163","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2007/070163.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nNOV 2 6 2807\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nMr. David Puhl\nMidwest Airlines, Air Cargo\n301 W. Air Cargo Way\nMilwaukee, Wisconsin 53207\nRef. No.: 07-0163\nDear Mr. Puhl:\nThis is in response to your letter dated August 13,2007 concerning the applicability of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 17 1 - 1 80) to shipments of dry ice\ntransported by aircraft. You state that Midwest Airlines and its subsidiary Skyway Airlines\noperate as \"will-not carry\" airlines in accordance with Federal Aviation Administration\nregulations. Specifically, you ask if a shipment of dry ice which is offered for transportation\nin accordance with the exception specified in § 173.21 7(f) is considered a hazardous material\nunder the HMR and whether a \"will-not carry\" airline operator is authorized to transport dry\nice offered for transportation in accordance with the exception. Your concern lies with the\nstatement in § 173.21 7(f) that reads \". . .excepted from all other requirements of this\nsubchapter.\" You ask whether this statement, when used in this section, and elsewhere in the\nHMR, indicates that the item in question is no longer considered a \"hazardous material\" as\ndefined in tj 171.8 when all requirements of the paragraph are met.\nA hazardous material, as defined in $ 171.8, means a substance or material that the Secretary\nof Transportation has determined is capable of posing an unreasonable risk to health, safety,\nand property when transported in commerce, and has designated as hazardous under tj 5 103 of\nFederal hazardous materials transportation law (49 U.S.C. 5 101 et seq.). The term includes\nhazardous substances, hazardous wastes, marine pollutants, elevated temperature materials,\nmaterials designated as hazardous in the Hazardous Materials Table (HMT; § 172.10 I), and\nmaterials that meet the defining criteria for hazard classes and divisions in Part 173 of the\nHMR.\nSection 173.2 17(f) provides an exception from ali other requirements of the HMR for Carbon\ndioxide, solid (dry ice), when offered or transported by aircraft, in quantities not exceeding\n2.3 kg (5 pounds) per package and used as a refkigerant for the contents of the package\nprovided: ( I ) the dry ice is packed in a packaging which meets the general packaging\nrequirements of Subpart B of Part 173; (2) the packaging is designed and constructed to\npermit the release of carbon dioxide gas to prevent a build-up of pressure that could rupture\nthe packaging; (3) not more than 200 kg (441 pounds) of solid carbon dioxide is transported\nin any one cargo compartment or bin on any aircraft except by specific and special written\n\n<<<PAGE 2>>>\n\narrangement between the shipper and the aircraft operator; and (4) the package is marked\n\"Carbon dioxide, solid\" or \"Dry ice\", marked with the name of the contents being cooled, and\nmarked with the net weight of the dry ice or an indication the net weight is 2.3 kg (5 pounds)\nor less.\nThe statement in the HMR that reads \". . . is not subject to the requirements of this\nsubchapter,\" does not indicate that a material is not a \"hazardous material,\" as defined in\n171.8. It does indicate that if the material is prepared for transportation and transported in\naccordance with the applicable paragraph, it does not have to satisfy any other requirements\nof the HMR. For the purposes of the HMR, dry ice is considered to be a hazardous material,\ndespite the exception from certain requirements in $ 173.2 17. However, there are some\nexceptions in the HMR for items that are not considered to be \"hazardous materials,\" which\nbecause of design, size, content, andlor packaging have been determined to pose minimal\nsafety risks in transportation (e.g., the exceptions in 5 173.134@) for Division 6.2 (infectious\nsubstance) materials).\nIf you have any questions concerning aircraft operational requirements, including the carriage\nof excepted hazardous materials by \"will-not carrf' airlines under 14 CFR, we suggest you\ncontact the Federal Aviation Administration's Office of Hazardous Materials at\n(202) 267-7530.\nI hope this information is helphl.\nSincerely,\nDirector, Office of Hazardous\nMaterials Standards\n\n<<<PAGE 3>>>\n\nAugust 13,2007\nMr. Edward T. Mazzullo\nDirector, Office of Hazardous Materials Standards\nU.S. DOT/PHMSA (PHH- 10)\n1200 New Jersey Avenue, SE East Building, 2nd Floor\nWashington, DC 20590\nDear Mr. Mazzullo,\nThis letter is a request for fonnal interpretation regarding the provisions of 49CFR for the transportation by\naircraft of certain excepted itenis.\nThe language of 49CFR 173.2 17(9 is exemplary of these exceptions in which the regulation indicates that,\nwhen a package containing Dry Ice colnplies with paragraphs (a) and (d) of this rule along with the other\nprovisions in the paragraph, the package is excepted from all other requirements of Subchapter C. Our\nconcern lies with the statement in 173.21 7(9 that reads \"...excepted from all other requirements of this\nsubchapter.\" Does this statement mean the item in question is no longer considered a hazardous material as\ndefined under 171.8 when all requirements of the paragraph are met?\n//I\nMidwest Airlines, and our subsidiary unit, Skyway Airlines, each operate as a \"will-not carry\" airline for the\ntransport of hazardous materials. The FAA lias concluded that airlines with a \"will-not carry\" status are\nprohibited from transporting any item described in 49CFR unless specifically provided for in 175.10. We\ncontend that, if an item is described in Subchapter C of 49CFR as \"not subject to the requirements of this\nsubchapter\", the item no longer meets the definition of a hazardous material and cannot be subject to\nenforcement action as a hazardous material. This same phrase is found elsewhere, referring to other excepted\nitems, in sections 173.307 for sports balls and tires, 173.164(b) for electrical components containing liquid\nmercury, 173.134(b) for certain biological substances. We believe your interpretation in the case of Dry Ice\nwill affect all of these other exceptions, and perhaps others.\niF7c look forward to receiving your rzspolise in this matter.\nSincerely,\nDavid Puhl\nAir Cargo Trainer\nCc: Mr. Doug Myers, Director Safety & Security\nSkyway Airlines, Inc.\nAir Cargo - 301 W. Air Cargo Way, Milwaukee. WI 53207\nOffice: 414-747-6395 Fax: 414-482-3414 Web: www.midwestairlines.com E-mail: david.puhl@midwestairlines.com\nhllDWEST AIR GROUP. INC IS A PUBLIC COMPANY, TRADED ON THE AMEX UNDER THE SYMBOL hlEH","truncated":false,"body_characters":6572}