{"operation":"document","citation":"10-0213","title":"Thunderbird Cylinder, Inc — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2011-09-07","effective_on":null,"summary":"10-0213 response to Thunderbird Cylinder, Inc concerning 171.1.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0213.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0213.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0213","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2011/100213.pdf","body":"<<<PAGE 1>>>\n\n1200 New Jersey Avenue SE\nU.S. Department Washington. DC 20590\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nSEP -7 2011\nMr. Fred Nachman\nThunderbird Cylinder, Inc.\n4209 E. University Drive\nPhoenix, AZ 85034\nRef. No. 10-0213\nDear Mr. Nachman:\nThis responds to your e-mail regarding references to functions not subject to the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180), as specified in 49\nCFR §171.1 (d), as they relate to whether \"governments\" are exempt from the\nHMR. You also stated that \"Fire Departments that want to protect their personnel\nhave airpaks requalified when dropped, exposed to heat, with abrasive damage,\netc., even ifnew and recently put into service. [Fire Departments] are also free to\nadhere to best practices ofrequalifying these cylinders per the CFRs and referenced\nSpecial Permits.\" Specifically, you ask if\"government\" entities are not subject to\nthe HMR, based on the following scenarios. The questions are paraphrased and\nanswered as follows:\nQ1. Is transport of a hazardous material in a motor vehicle, aircraft or vessel\noperated by a Federal, state, or local government employee solely for noncommercial\nFederal, state, or local government purposes subject the HMR?\nAI. The answer is no. The transportation ofa hazardous material in a transport\nvehicle operated by government personnel for non-commercial government\npurposes is an activity to which the HMR do not apply, as specified in 49\nCFR §171.1(d)(5).\nQ2. Are airpaks used by fire departments that are filled or refilled by the fire\ndepartments (and not by a corporate enterprise) in one ofthe following two\nmanners subject to the requirements ofthe HMR: (1) filled/refilled by the\nfire department at a fire scene or (2) filled/refilled by the fire department in\na fill room and then transported by fire trucks on highways to a fire scene\nfor use?\nA2. The answer is no. As 49 CFR §171.1 (d)( 5) states, when a local government\nemployee transports a hazardous material solely for non-commercial local\n\n<<<PAGE 2>>>\n\ngovernment purposes, the HMR does not apply. Because fire departments\nare local government entities, when employees ofthe fire department\ntransport airpaks in fire trucks solely for the non-commercial government\npurpose ofbeing used at fire scenes, these activities fall under the\nexemption in 49 CFR §171. I (d)(5).\nHowever, it is important to note that 49 CFR §171.1 (d)(5) does not except\nall government activities from the requirements ofthe HMR, but rather only\nthose that fall within the narrow parameters ofthe exception. Thus, other\ngovernment activities involving the transportation ofhazardous materials\nmay be subject to the HMR. Additionally, even when an activity is\nexcepted from the HMR under 49 CFR §171.1 (d)( 5), that activity may,\nnevertheless, be subject to other regulations (e.g., Occupational Safety and\nHealth Administration (OSHA».\nQ3. Are air cylinders (4500 psi) on a ladder unit that provide breathing air to\nfirefighters at the top ofthe ladder subject to the requirements ofthe HMR?\nA cascade system on a fire vehicle is used to refill airpak bottles at a scene.\nA3. The answer is no. Again, because fire departments are part oflocal\ngovernments and the air cylinders are transported by fire department\nemployees for the sole non-commercial government purpose ofproviding\nair to fire fighters at a fire scene, this falls under the government exemptioI?in\n49 CFR §171.1 (d)(5).\nHowever, as stated above, 49 CFR §171.1(d)«5) only excepts government\nentities from the HMR when the hazardous material is being transported by\na government employee solely for a non-commercial government purpose.\nIt does not except government activities that do not fall within these\nparameters and it does not except governments from the requirements of\nregulations other than the HMR.\nI hope this satisfies your inquiry. Ifwe can be offurther assistance, please contact us.\nSincerely,\n~StyL-\nBenSupko\nActing Chief, Standards Development\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\n-,\ni)rakeford, Carolyn (PHMSA)\nFrom:\nSent:\nTo:\nCc:\nSubject:\nBetts, Charles (PHMSA)\nWednesday, September 29,201012:40 PM\nDrakeford, Carolyn (PHMSA) {J-tjrafj]\nToughiry, Mark (PHMSA)\nNEW REQUEST FOR INTERPRETATON C31-//. I\nFrom: Fred Nachman [mailto:fredn@cylinder.com]\nSent: wednesdaYJ September 29 J 2010 12:00 PM\nTo: ToughirYJ Mark (PHMSA)\nSubject:\n--A!JP~/caJ;1 '!tty /()-t213\nMark J\nDo the following references really exempt governments from the HMRJ s :\n49c\"FR171- Ge,l!eral InformationJ Regulations and Definitions 49CFR171.1(d) Functions not subject\nto the requirements of the HMR.\n49CFR171.1(d)(5} Transportation of a hazardous material in a motor vehicle, aircraft or\nvessel operated by a Federal, state, or 10cal-gElverDment employee solely for noncommercial\n'Fe'deral, state or local government purposes.\nwhat about airpaks used by fire departments that are filled/refilled by the departments\neither in a fill room or at a scene? They are, then, transported by fire trucks on highways\nto the fire scene for use, where they may be refilled again on sight. They are not in\ncommerce where they had been filled by a corporate enterprise.\nWhat about air cylinders (4500psi) on a ladder unit that provide breathing air to\nfirefighters at the top of the ladder? A cascade system on a fire vehicle to refill airpak\nbottles at a scene?\nFire Departments that want to protect their personnel ,have airparks requalified when dropped,\nexposed to heat, with abrasive damage, etc. even if new and recently put into service. They\nare also free to adhere to best practices of requalifying these cylinders per the CFRs and\nreferenced Special Permits. It seems odd that DOT would allow this exemption, especially if\nOSHA or other agencies have different requirements.\nRegards,\nFred Nachman\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\n1","truncated":false,"body_characters":5986}