{"operation":"document","citation":"09-0138","title":"Godfrey & Kahn, S.C. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2009-07-09","effective_on":null,"summary":"09-0138 response to Godfrey & Kahn, S.C. concerning 173.220.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0138.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0138.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0138","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2009/090138.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department of Transportation Pipeline and Hazardous Materials\nSafety Administration\nJUL - 9 2009\n1200 New Jersey Ave, S.E.\nWashington, D.C. 20590\nMr. Douglas M. Poland\nGodfiey & Kahn, S.C.\nOne East Main Street,\nP.O. Box 2719\nMadison, WI 5370 1-27 19\nRef. No. 09-01 38\nDear Mr. Poland:\nThis responds to your June 1, 2009 letter requesting clarification of the applicability of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 17 1 - 1 80) to fuel systems.\nSpecifically, you ask whether a ground heatinglthawing trailer unit (\"heating trailer unit\") is\nsubject to the HMR. Your letter describes a heater affixed to a trailer chassis and connected\nto a fuel tank with a maximum capacity of 125 to 250 gallons also affixed to the trailer. The\nfuel tank is housed separately from the heater and will supply a diesel fuel blend to the heater\nthrough a fixed connecting hose. You note in a subsequent telephone discussion with a\nmember of my staff that the flash point of the diesel fuel blend will range from 108 OF to\n120 OF.\nIt is the opinion of this Office that if the fuel system for the heating trailer unit meets the\nrequirements for fuel systems under 49 CFR §§ 3 93.65 and 393.67 of the Federal Motor\nCarrier Safety Administration's Federal Motor Carrier Safety Regulations (FMCSRs) and is\nnot used as packaging for hazardous materials (e.g., a cargo tank), then the heating trailer\nunit is subject only to the FMCSRs. If the fuel system does not meet the FMCSRs\nrequirements, then the offering and transportation of the heating trailer unit is subject to the\nHMR.\nYour questions are paraphrased and answered below. Note that the answers are based on the\npresumption that the fuel system you describe does not conform to the FMCSRs.\nQl . Is the heating trailer unit eligible for exceptions in 4 173.220?\nA1 . No, the heating trailer unit is considered a cargo tank as defined in 6 17 1.8 and subject\nto the applicable cargo tank requirements.\n42. Is the heating trailer unit subject to marking, labeling, and placarding requirements\nwhen transported by highway with fuel in the tank?\nA2. Yes, the heating trailer unit is subject to applicable marking, labeling, and placarding\nrequirements.\n\n<<<PAGE 2>>>\n\n43. Is the heating trailer unit subject to marking, labeling, and placarding requirements\nwhen transported by highway without fuel in the tank?\nA3. No, however, we note that an empty packaging containing the residue of a hazardous\nmaterial is regulated in the same manner as when it previously contained a greater quantity of\nthe hazardous material (see 8 173.29). Thus, if the tank has not been cleaned and purged to\nremove all residue of the fuel, then it is subject to applicable marking, labeling, and\nplacarding requirements.\nQ4. How would the responses to the first three questions change if instead, the heater is\nsupplied by two separate fuel tanks each with a capacity less than 1 19 gallons where the fuel\ntanks are connected by a hose when the heater is operated but not connected during the\ncourse of transportation?\nA4. If the fuel tanks were not connected during transportation and acted as separate\npackagings, the two separate fuel tanks would be considered non-bulk packagings. The\nheating trailer unit would not be eligible for the exceptions in $ 173.220 because the fuel\ntanks would not be component parts of the heater (i.e., the mechanical equipment). The\nofferor would be subject to all applicable HMR requirements for authorized non-bulk\npackaging for the diesel fuel blend, as well as applicable marking, labeling, and placarding\nrequirements. However, based on the information provided regarding the flashpoint of the\nfuel, the fuel tanks are eligible for the exceptions for combustible liquids specified in\n5 173.150.\nI hope this information is helpful. If you have further questions, please do not hesitate to\ncontact this office.\nSincerely,\n\n<<<PAGE 3>>>\n\n8 172. 101\n1 7 3 . ~ 2 0 A T T O R N E Y S A T L A W\nONE EAST MAIN STREET\nPOST OFFICE BOX 2719\nMADISON, W I 53701-2719\nTEL 608-257-391 1\nFAX 608-257-0609\nwww.gklaw.com\nDirect: 608-284-2625\ndpoland@gklaw.com\nJune 1,2009\nEdward Mazzullo\nDirector Office of Hazardous Materials Standards\nPipeline and Hazardous Materials Safety Administration\nAttn: PHH- 10\nU. S. Department of Transportation, East Building\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590-0001\nDear Mr. Mazzullo:\nWe are writing with a question about the applicability of 49 C.F.R. 5 173.220,49 C.F.R.\n5 172.300 et. seq., 49 C.F.R. 5 172.400 et. seq., and 49 C.F.R. 5 172.500 et. seq. to a ground\nheatinglground thawing machine manufactured as-and designed to be transported as-a trailer.\nThe ground heatinglground thawing trailer unit in question (the \"heater\"), is designed to\naid cold-weather construction work by quickly, safely, and evenly heating large areas of ground.\nThe heater is composed of several interconnected parts that are separately affixed to an\nunderlying trailer chassis. These parts include a heating mechanism, a pump, and a he1 tank.\nThe heating mechanism (the part of the heater that actually provides heat) is used to heat\na non-hazardous and environmentally safe fluid. The fluid is pumped through a closed, re-\ncirculating system including several thousand feet of industrial hose that is designed to be\nuiispooled md spread in rows across the worksite to be heated. The heater steadily increases the\nheat of t h s fluid as it repeatedly cycles from the hose, through the heating mechanism, and back\nthrough the hose again.\nThe heating mechanism is connected to a fuel tank with a maximum capacity between\n125 and 250 gallons. The fuel tank is housed separately from the heating mechanism, and is\ndesigned to supply a diesel fuel blend to the heating mechanism through a fixed connecting hose.\nThe heating mechanism cannot operate without drawing fuel from the tank.\nOFFICES IN MILWAUKEE, MADISON, WAUKESHA. GREEN BAY AND APPLETON, WI; WASHINGTON, DC; AND SHANGHAI, P R C\nGODFREY 6 KAHN IS A MEMBER OF T E R R A L E X ~ . A WORLDWIDE NETWORK OF INDEPENDENT LAW FIRMS.\n-/---\n\n<<<PAGE 4>>>\n\nEdward Mazzullo\nPipeline and Hazardous Materials Safety Administration\nJune 1,2009\nPage 2\nQuestions:\n1. 2. 3. 4. Does this heater fall within any exception under 49 C.F.R. tj 173.220?\nIs this heater subject to any marking, labeling, or placarding requirements under\n49 C.F.R. tj 172.300 et. seq., 49 C.F.R. tj 172.400 et. seq., or 49 C.F.R. tj 172.500\net. seq. when being transported on roadways with fuel in the tank?\nIs this heater subject to any marking, labeling, or placarding requirements under\n49 C.F.R. 5 172.300 et. seq., 49 C.F.R. 5 172.400 et. seq., or 49 C.F.R. tj 172.500\net. seq. when being transported on roadways without any fuel in the tank?\nHow, if at all, would the answers to questions 1 through 3 change if the heater\nincluded two smaller fuel tanks with a maximum capacity of less than 119 gallons\neach, connected to each other with a fuel hose during stationary operations but not\nconnected during transportation, instead of single fuel tank with a maximum\ncapacity of between 125 and 250 gallons?\nThank you for your attention to this request. Please do not hesitate to call or email us\nusing the contact information provided if you require additional information to respond to this\ninquiry.\nSincerely,\nGODFREY & KAKN, S.C. I~-\nDouglas U o l a n d","truncated":false,"body_characters":7368}