{"operation":"document","citation":"10-0041","title":"Britt & Brown LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2010-06-23","effective_on":null,"summary":"10-0041 response to Britt & Brown LLP concerning 171.8.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0041.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0041.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0041","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2010/100041.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department of Transportation 1200 New Jersey Ave. SE\nWashington. D.C. 20590\nPipeline and Hazardous Materials\nSafety Administration\njUN 23 2010\nMr. Andrew Brought\nBritt & Brown LLP\n1000 Walnut Street, Suite 1400\nKansas City, Missouri 64106-2140\nRef. No. 10-0041\nDear Mr. Brought:\nThis responds to your February 12,2010 letter requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask for clarification of\nthe applicability of the HMR to Repair Stations certified by the FAA pursuant to 14 CFR Part\n145 and the employees, who in the course oftheir repair operations may handle and temporarily\nstore hazardous material cargo.\nAs specified in § 171.1, the HMR govern the safe transportation of hazardous materials in\nintrastate, interstate and foreign commerce. Generally, a \"hazmat employee\" is any person who\nis employed on a full-time, part-time, or temporary basis and who in the course of such\nemployment directly affects hazardous materials safety. (See § 171.8 for the complete\ndefinitions of \"hazmat employee\" and \"hazmat employer.\"). In other words, a person who\nperfonns duties that are regulated under the HMR is considered to be a hazmat employee. Part\n175 contains requirements specifically applicable to the transportation of hazardous materials by\naircraft. Any person who is responsible for perfonning a duty that is regulated by Part 175 is\nconsidered to be a hazmat employee. All hazmat employees must be trained in accordance with\nthe requirements in Subpart H of Part 172 of the HMR.\nSpecific questions pertaining to the functions perfonned by FAA certified Repair Stations,\nincluding repairs of commercial and non-commercial aircraft containing hazardous cargo should\nbe directed to FAA's Office of Chief Counsel, Rebecca MacPherson, AGC-200.\nI hope this infonnation is helpful. If you have further questions, please contact this office.\nSincerely, d\n.itt\" i )1< \" 1\n...J.Jt i{ tz .. l.J!i!f\nI·\nCharles E. Betts\nChief, Standards Development\n( Office of Hazardous Materials Standards\n\n<<<PAGE 2>>>\n\nSPENCER\nFANE\nBRITT & BROWNE LLP\n£/~~m'ClMb\n~ rl5· 7 SA~r\nATTORNEYS & COUNSELORS AT LAW lo-ov1/\nANDREWC BROUGHf File No. 5015392/0002\nDlREcrDIAL: (816) 292-8886\nabrought@spcncerfane.com\nFebruary 12, 2010\nVIA U.S. FIRST CLASS MAIL\nU.S. Department ofTransportation\nPHMSA Office of Hazardous Materials Standards\nAttn: PHH-I0\nEast Building\n1200 New Jersey Ave., SE\nWashington, D.C. 20590-0001\nRe: HazMat Interpretation I Guidance - Aircraft Repair Stations\nDear Office of Hazardous Materials Standards:\nOne ofour clients operates several aircraft repair stations certified by the Federal Aviation\nAdministration (\"FAA\"), pursuant to 14 CFR Part 145 (the \"Repair Station\"). A large majority of\naircraft repairs are conducted on noncommercial private aircraft operating under 14 CFR Part 91.\nThe Repair Station may occasionally conduct repairs on commercial aircraft operated under 14 CFR\nPart 121, but very rarely repair 14 CFR Part 135 charter/air taxi aircraft. The Repair Station\nemployees have received hazardous materials (\"HazMat\") training under 49 CFR Part 172, Subpart\nH, as required by the FAA.\nWith respect to repair ofPart 91 Aircraft, guidance is requested concerning the interplay of\nthe Department ofTransportation Pipeline and Hazardous Materials Safety Administration's (\"DOTPHMSA\")\nHazMat regulations at 49 CFR Part 175 and the FAA's repair station regulations under 14\nCPR Part 145. In particular, the regulations do not address repair of Part 91 Aircraft at Part 145\nrepair stations and there do not appear to be any applicable FAA or DOT -PHMSA guidance\nmaterials or interpretive letters.\nThe following are examples ofvarious hypothetical scenarios that could arise at the Repair\nStation, for which guidance is requested from DOT-PHMSA:\n(1) An aircraft being operated under Part 91 flies into the Repair Station for repairs. The\npilot owns the plane. There are no passengers on the plane. The pilot unloads unidentified cargo and\nstores it temporarily in a locker at the Repair Station. At the finish ofthe repair the pilot reloads the\ncargo.\n1000 Walnut Street, Suite 1400\nKansas City, Missouri 64106-2140 (816) 474-8100 www.spencerfane.com Fax (816) 474-3216\nWA 1592992.1\nKansas City, Missouri St. Louis, Missouri Jefferson City, Missouri Overland Park, Kansas Omaha, Nebraska\n\n<<<PAGE 3>>>\n\nSPENCER FANE\nBRITT s..BROWNE LLP\nATTORNEYS\", COUNSELORS AT LAW\nu.s. Department of Transportation\nFebruary 12,2010\nPage 2\n(a) Please confirm there is not any basis under which DOT-PHMSA would\nassert Part 175 applicability/jurisdiction for the Repair Station? Ifthere is a basis for\njurisdiction, please identify the specifically applicable regulations under Part 175 to\nthe Repair Station.\n(b) If, instead of being unidentified cargo, a Repair Station employee\nidentifies HazMat items off-loaded and then re-Ioaded by thepilotlowner, would the\n311alysis change?\n(c) Would the analysis change ifthe owner ofthe plane was not the pilot, but\ninstead a pilot was hired to fly the plane to and from the Repair Station?\n(2) Assume the same fact scenario as Hypothetical No. I, but in this instance a Repair\nStation employee, as opposed to the pilot, unloads the unidentified cargo, stores it in a locker\ntemporarily and reloads the cargo before the aircraft's departure.\n(a) As it relates to the unidentified cargo, is there any basis under which\nDOT -PHMSA would assert compliance with Part 175 is required (e.g., (i) offering or\naccepting hazardous materials for transportation, (ii) performing the duties of a\nhazmat shipper; or (iii) unloading or loading hazardous materials for transportation)?\nIf so, please identify the specifically applicable regulations under Part 175 to the\nRepair Station.\n(b) If, instead of being unidentified cargo, a Repair Station employee\nidentifies HazMat items, and that employee is involved in the off-loading and then\nre-Ioading, would the analysis change?\n(c) Would the analysis change ifthe owner ofthe plane was not the pilot, but\ninstead a nilot was hired to fly the DIane to and from the ReDair Station?\n\"l ... ... .4\nPlease contact me at (816) 292-8886 at your convenience to discuss the DOT's interpretation\nof these scenarios and the interplay of DOT's regulations with FAA Part 145 repair stations.\n;j~\nAndrew C. Brought\nACB/acb\nWA 1592992.1\n\n<<<PAGE 4>>>\n\nSPENCER FANE\nBRITT &. BROWNE LLP\nATTORNEYS & COUNSEI.ORS AT LAW\nU.S. Department of Transportation\nFebruary 12,2010\nPage 3\nbcc: Ms. Dawn Wavle Reed, Esq. Hawker-Beechcraft Corp. (via Electronic mail)\nMs. Bonnie Nold, Hawker-Beechcraft Corp. (via Electronic mail)\nWA 1592992.1","truncated":false,"body_characters":6670}