{"operation":"document","citation":"12-0062","title":"Duke Energy Corporation — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2012-08-20","effective_on":null,"summary":"12-0062 response to Duke Energy Corporation concerning 171.1, 172.201.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0062.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0062.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0062","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2012/120062.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nAUG 2 o 2012\nCharles (Chuck) S. Denny, CHMM\nDuke Energy Corporation\nDOT Hazardous Material SME\nEHS Waste and Remediation\nReference No. 12-0062\nDear Mr. Denny:\nThis is in response to your e-mail requesting clarification of the Hazardous Materials\nRegulations (HMR; 49 CPR, Parts171-180) applicable to the transportation of a product\ncalled StatX that your company is considering using. In your letter, you state this product is\ntransported under \"UN0431, Articles, pyrotechnic, 1.4G, II, EX -2006100012,\" and would\nbe issued to your crews who work with underground vault transformers. The product would\nbe issued to each work vehicle, used to extinguish fires in cases of an emergency related to\nyour crews' jobs, and could be transported for years without use. You ask whether the\nHMR is applicable to your product when it is transported.\nThe answer is yes. As specified in§ 171.1, the HMR govern the transportation of hazardous\nmaterials in intrastate, interstate, and foreign commerce. The term \"in commerce\" means in\nfurtherance of a commercial enterprise. As you note in your letter, the product would be\nutilized by work crews at a job site. A hazardous material that is transported to support a\ncommercial enterprise, such as a job site, is fully subject to the HMR.\nYou also ask, if your product is in commerce, whether a shipping paper must be generated\ndaily or can a permanent shipping paper be used. Section 172.201 (e) provides for the use of\na permanent shipping paper when shipping the same material (same shipping name and\nidentification number) for multiple shipments, instead of a separate shipping paper for each\nshipment made, if the carrier also retains a record of each shipment made, to include\nshipping name, identification number, quantity transported, and date of the\nshipment. Therefore, if you choose to use a permanent shipping paper instead of a shipping\npaper for each daily delivery, you must also retain copies of your delivery or billing receipts\nthat include the shipping name, identification number, quantity transported, and date of\nshipment.\nI hope this information is helpful. Please contact this office should you have additional\nquestions.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 2>>>\n\nDrakeford, Carolyn (PHMSA)\nFrom:\nSent:\nTo:\nSubject:\nAttachments:\nINFOCNTR (PHMSA)\nMonday, February 27, 2012 1 :50 PM\nDrakeford, Carolyn (PHMSA)\nFW: DOT Commerce Question -Assistance and Letter of Interpretation Requested\nBulletin_ FR in Use.pdf\nHi Carolyn,\nWe received the following request for a letter of interpretation.\nThanks,\nVictoria\nVictoria Lehman\nHazmat Information Center (HMIC)\nhttp://phmsa.dot.gov/hazmat/info-center\n(202) 366-1035\nFrom: Denny, Chuck [mailto:Chuck.Denny@duke-energy.com]\nSent: Monday, February 27, 2012 1:31 PM\nTo: PHMSA HM InfoCenter\nCc: Denny, Chuck\nSubject: DOT Commerce Question - Assistance and Letter of Interpretation Requested\nPHMSA,\nLast week when I called the DOT helpline, I discussed the situation regarding a product that we wish to use. The\nattached guidance from the manufacturer differs from the guidance that DOT's Information Helpline provided.\nTherefore, I am hoping that you will provide a formal interpretation on this subject and let me know which guidance is\naccurate so that both of us are in agreement as to what is required.\nPreviously sent Information:\nWe want to use a product called StatX, which has the shipping description \"UN0431, Articles, pyrotechnic, 1.4G, II, EX-2006100012\". This product\nis to be issued to our crews that work with underground vault transformers. This product is able to put out fires in the underground vaults and our\nvault crews want to use it to potentially save lives if the need ever arose. Each of the vehicles would be permanently issued this product to\ntransport in case of an emergency. Since we hope that this product will never be used, a vehicle could be transporting this product for a number of\nyears without ever being used. Since this material has the hazard class of 1.4G, it cannot be transported under the Materials of Trade exception, 49\nCFR 173.6.\nOur questions pertain to commerce and shipping paper requirements. We are the shipper and the carrier. This material is not being transported\nto a site, until it is to be used in an emergency. Per 49 CFR 172.201 (e), the shipper is to maintain a copy of the shipping papers for two years from\nthe date it was accepted by the carrier and the carrier is to maintain a copy of the shipping paper for one year after accepting the material.\n1) When crews have this product on their vehicles in case of an emergency, is this considered commerce? Yes, uniess it fits under FMCSll\nrequired material (49 CFR 393.95) Hazardous Material Information Center's Response)\n2) Rather than issuing a bill of lading each day the truck is out in the field or using the log method and listing each day the vehicle goes out\nin the field, can we generate a permanent shipping paper with the initial date of issue and use this same bill of lading until the material is\nremoved from the vehicle, even though this material could be on the vehicle for several years? No, a BOL for each\nor is\nrequired (DOT Hazardous Material information Center's Response).\n3) If we are able to use the initial dated shipping paper for several years, what do you recommend regarding keeping a copy of the shipping\npaper for two years by the shipper and one year by the carrier if the same bill of lading is being used if the originally issued shipping\n1\n\n<<<PAGE 3>>>\n\npaper exceeds this time period? A SOL is required for each\nor BOL log is required (DOT Hazardous Material information\nCenter's Response).\nWhen DOT returned my call, I was informed that carrying this product on our vehicles would be considered in commerce\nand that full regulations would be required. DOT also pointed out that if FMCSA allowed this product to be transported\nunder their emergency equipment identified under 49 CFR 392.9 and 49 CFR 393.95, this would not be considered\ncommerce. As far as I can tell, this product does not meet the FMCSA's description for a fire extinguisher.\nAs can been seen in the attached bulletin, the manufacturer does not consider their product being transported in our\nvehicles as being in commerce. Please give me a call to indicate as to whether their guidance is accurate. I would also\nlike a formal letter of interpretation on this since it would be beneficial to both parties to better understand the issue of\nwhether the movement of this material is in commerce or not. We want to use the product, but we want to make sure\nthat it is done correctly.\nThanks,\nCharles (Chuck) S. Denny, CHMM\nDuke Energy Corporation\nDOT Hazardous Material SME\nEHS Waste and Remediation\nChuck.Denny@duke-energy.com\n980-373-4947 (Office)\n704-564-1504 (Cell)\n704-382-0249 (Fax)\n2","truncated":false,"body_characters":7036}