{"operation":"document","citation":"10-0212","title":"Thunderbird Cylinder, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2011-03-18","effective_on":null,"summary":"10-0212 response to Thunderbird Cylinder, Inc. concerning 171.1.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0212.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0212.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0212","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2010/100212.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department of Transportation Pipeline and Hazardo.us Materials Safety Administration\n1200 New Jersey Ave. SE\nWashington. D.C. 20590\nMAR 1 8 2011\nMr. Fred Nachman\nThunderbird Cylinder, Inc.\n4209 E. University Drive\nPhoenix, AZ 85034\nRef. No. 10-0212\nDear Mr. Nachman:\nThis responds to your October 4,2010 email regarding requirements for cylinders under the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you request\nclarification ofthe applicability of the HMR to cylinders used and transported by government\nagencies for non-commercial purposes. Your questions are paraphrased and answered as follows:\nQ1. Does § 171.1 (d)( 5) of the HMR exempt a government agency from being subject to the\nrequirements of the HMR?\nA1. Section 171.1 (d)( 5) clarifies that the transportation of a hazardous material in a transport\nvehicle operated by government personnel for non-commercial purposes is an activity to which\nthe HMR do not apply. However, this may not fully except a government agency from being\nsubject to the HMR. The statutory definition of a \"person\" under 49 U.S.C § 5102(9) includes a\ngovernment, Indian tribe, or authority of a government or tribe that (1) offers hazardous material\nfor transport in commerce; (2) transports hazardous material to further a commercial enterprise;\nor (3) designs, manufactures, fabricates, inspects, marks, maintains, reconditions, repairs, or tests\na package, container, or packaging component that is represented, marked, certified, or sold as\nqualified for use in transporting hazardous material in commerce. Thus, if condition (3) is met, a\ngovernment agency is subject to the HMR pertaining to that activity even if a hazardous material\nis not offered in commerce or transported in furtherance of a commercial enterprise. See the\ndefinition ofa \"person\" subject to the HMR in 49 U.S.C § 5102(9) and 49 CFR 171.8.\nQ2. Regarding a letter of interpretation issued on July 1, 2005 (Ref no. 05-0060), does the\nresponse contradict § 171.1 (d)( 5)7\nA2. No. The letter of interpretation referenced in your email states that \"a cylinder marked to\ncertify that it conforms to HMR requirements must be maintained in accordance with applicable\nspecification requirements whether or not it is in transportation in commerce at any particular\ntime.\" This does not contradict § 171.1(d)(5). As noted in AI, § 171.1(d)(5) relates to noncommercial\ntransportation of a hazardous material. A government agency is still subject to the\nHMR ifthe agency designs, manufactures, fabricates, inspects, marks, maintains, reconditions,\nrepairs, or tests a cylinder that is represented, marked, certified, or sold as qualified for use in\n\n<<<PAGE 2>>>\n\ntransporting hazardous material in commerce. Thus, a government agency maintaining a cylinder\nas qualified to a DOT specification for use in transporting a hazardous material in commerce is\nsubject to the maintenance and requalification requirements for that particular cylinder\n. specification, for example.\nQ3. What about (1) a self-contained breathing apparatus (SCBA) (e.g., an Air-Pak®) used and\ntransported by fire department vehicles and filled or refilled at the scene of an emergency; (2) an\nair cylinder on the ladder unit of a fire truck used to supply air to a firefighter; or (3) a DOT\ncascade storage system on a fire department vehicle used to refill SCBAs at tht:! scene of an\nemergency? Are these packagings, some constructed to a DOT specification or operated under a\nSpecial Permit, and activities exempted from being subject to the HMR?\nA3. In a final rule published October 30,2003 under docket HM-223 (68 FR 61906), the\nResearch and Special Programs Administration (RSP A), the predecessor agency to PHMSA,\nstated that emergency vehicles (e.g., a fire truck) used to respond to emergencies under the\nauthority ofa local government are not subject to the HMR. This is because the government\nagency treats the vehicles as government-operated vehicles for community emergency response\nregardless ofwhether the vehicle is owned or operated by a commercial company (68 FR 61913).\nThus, any hazardous material transported on the emergency vehicle used for emergency response\nunder the authority of a local government is not subject to the HMR. However, as noted in A2,\ncylinders maintained as qualified under the HMR for use in transporting hazardous material are\nsubject to the HMR pertaining to the design, manufacture, fabrication, inspection, marking,\nmaintenance, reconditioning, repair, or testing ofthe cylinder.\nQ4. What about a DOT specification tube trailer or cascade storage system located at a fixed\nfacility and used to fill cylinders. Do the filling systems that utilize cylinders need to be\nrequalified in accordance with the HMR?\nA4. Ifthe government agency maintains and certifies that the packagings are qualified for use in\ntransporting hazardous material in accordance with the 49 CFR then the government agency is\nsubject to the HMR relating to those activities. Otherwise, government operations are typically\nfor non-commercial purposes and therefore, not subject to the HMR. Additionally, transportation\nin commerce does not include PHMSA regulation offixed storage operations at facilities. See\n§ 171.1(d)(1) and (3).\nI hope this information is helpful. If you have further questions, please contact this office.\n:&~S~\nActing Chief, Standards Development\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nDrakeford, Carolyn (PHMSA)\nFrom: Betts, Charles (PHMSA)\n~ 17/·8 ·\nSent: Monday, October 04,20102:00 PM AP pll calo/lrl-q\nTo: Chunephisal, Alisa (PHMSA); Chaney, Wayne (PHMSA)\nCc: Drakeford, Carolyn (PHMSA) 10 -OZ/~\nSubject: RE: Any thoughts?\nFrom: Chunephisal, Alisa (PHMSA)\nSent: Monday, October 04, 2010 1:34 PM\nTo: Chaney, Wayne (PHMSA); Betts, Charles (PHMSA)\nSubject: Any thoughts?\nAlisa Chunephisal\nAttorney-Advisor\nU.S. Department of Transportation\nPipeline and Hazardous Materials Safety Administration\nOffice of the Chief Counsel\nEast Building, E24-311\n1200 New Jersey Avenue, S.E.\nWashington, DC 20590\ntel. (202) 366-3627\nfax. (202) 366-7041\nThis transmission may contain material that is confidential, privileged. and/or attorney work product/i)!\" fhe sole use offhe intellded\nrecipient. Any review. reliance, or distribution by others or j'ont'ardillg without express permission is strictly prohihited. Public\navailability is to he determined pursuant ro the Freedom oj'fnformatiofl Act, 5 USC 55J.\nFrom: Fred Nachman [mailto:fredn@cylinder.com]\nSent: Monday, October 04, 2010 1:27 PM\nTo: Chunephisal, Alisa (PHMSA)\nCc: Lehman, Victoria (PHMSA); Posten, Ryan (PHMSA)\nSubject: RE:\nMs. Alisa Chunephisal\nDOT, Office of Hazardous Material Standards\nDear Ms. Chunephisal,\nConfirming our conversation of this morning, October 4, 2010, do the following references exempt government entities\nfrom the HMR's:\n49CFR171 General Information, Regulations and Definitions\n49CFR171.1(d) Functions not subject to the requirements of the HMR.\n49CFR171.1(d)(S) Transportation of a hazardous material in a motor vehicle, aircraft or vessel operated by a Federal,\nstate, or local government employee solely for noncommercial Federal, state or local government purposes.\nI can understand allowing the military to transport cylinders without manifests, bills of lading or hazmat marking in an\nemergency or hostile situation.\n1\n\n<<<PAGE 4>>>\n\nDoes the Interpretation letter No. 05-0060, paragraph 2 contradict the above ... A cylinder marked to certify that it\nconforms to HMR requirements must be maintained in accordance with applicable specification requirements whether or\nnot it is in transportation in commerce at any particular time.\nAs Ms. Lehman explained, if the DOT Specification remains on the cylinder, it must meet all CFR requirements for\nmanufacturer and requalification.\n49CFRI05(A) Definitions\nTransports or Transportation means the movement of property and loading, unloading or storage incidental to the\nmovement.\n1. What about airpaks used by fire departments that are filled/refilled by the departments either in a fill room or at\na scene? They are, then, transported by fire trucks on highways to the fire scene for use, where they may be\nrefilled again and again on sight. They are not in commerce where they had been filled by a corporate\nenterprise. They are, however, in Transportation being loaded/filled and unloaded/used.\n2. What about air cylinders (4500psi) on a ladder unit/aerial fire truck that provide breathing air to firefighters at\nthe top of the ladder? A DOT cascade system on a fire vehicle to refill airpak bottles at a scene? They are\noperated by a governmental unit; however, they have a DOT Specification or Special Permit on them. They\ncould be changed out to ASME cylinders which do not require recertification.\nFire Departments that want to protect their personnel have airparks requalified when dropped, exposed to heat,\nwith abrasive damage, etc. even if new and recently put into service. They are also free to adhere to best practices of\nrequalifying these cylinders per the CFRs and referenced Special Permits. It seems odd that DOT would allow this\nexemption, especially if OSHA or other agencies have different requirements.\n3. How about a tube trailer delivered over the highway to site in a customers yard where it is filled on site and,\nthen, used to fill other cylinders without moving from that site? Does it need to be requalified at its periodic\nDOT Spec date?\n4. How about a cascade system that is constantly being filled by a compressor and, then, filling cylinders multiple\ntimes a day? These cascade cylinders are constantly being filled to high pressures over and over on a daily basis.\nI discussed this with Ms. Victoria Lehman in the DOT Information Center and received the following reference to the 050060\nLetter of Interpretation from Ms. Susan Gorsky, who has retired.\nThank you for offering to resolve this issue.\nRegards,\nJ,.IA N a~.\"._\nThunderbird Cylinder, Inc.\n4209 E. University Drive\nPhoenix, AZ 85034\n(Email)fredn@cylinder.com\n(P) 602.437.4600\n(M) 602.290.8000\n(F) 602.437.5052\n2","truncated":false,"body_characters":10112}