{"operation":"document","citation":"13-0051","title":"Occidental Chemical Company — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2014-02-18","effective_on":null,"summary":"13-0051 response to Occidental Chemical Company concerning 173.13, 173.6.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0051.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0051.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0051","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2013/130051.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\nFEB 1 8 2014\nMr. Norman Dodson\nTechnical Services\nOccidental Chemical Company\n6200 South Ridge Road\nWichita, KS 67026\nReference No. 13-0051\nDear Mr. Dodson:\nThis is in response to your letter, e-mails, and telephone conversations with a member of my\nstaff requesting that Pipeline and Hazardous Materials Safety Administration (PHMSA)\nreconsider its response in its December 11, 2012 clarification letter, Reference No. 12-0208,\nto you concerning the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180)\napplicable to the Materials of Trade (MOTs) regulations. Specifically, you ask if the portion\nof transportation where your customers' employees transport chemical samples by private\nmotor vehicle from their places of business to the facilities of companies they hire (e.g.,\nFedEx) to package and prepare these samples for transportation on your customers' behalf\nallows the samples to qualify as MOTs.\nIn addition, you state the following:\n• Your company supplies these products to its customers in bulk packages and the\nsamples returned to your company are packaged in quantities of one pint or less;\n• The chemical products your company supplies its customers meet the following\nhazard class definitions: Divisions 5.1 (oxidizer) Packing Group (PG) II, and 6.1\n(poisonous) PG II and III, and Class 8 (corrosive) PG II and III; and\n• Your customers' employees are not hazmat trained in conformance with Subpart H\n(Training) of Part 172 the HMR, and do not possess the packaging and other materials\nneeded to prepare these samples for transportation.\nThe answer is no. The intent of the MOTs exception is to provide relief for a private carrier\nthat permits him or her to transport by motor vehicle certain hazardous materials, other than\nhazardous waste, that are used in direct support of the carrier's principal business other than\ntransportation (see§ 171.8). Although the HMR do not specifically define \"direct support of\na principal business that is other than transportation,\" it is this Office's intent that this phrase\nmeans the company is transporting its own business products for the purpose of carrying out\nthe activities of its business and not to offer these materials for transportation. Therefore, a\nhazardous material prepared in conformance with the MOTs requirements no longer qualifies\n\n<<<PAGE 2>>>\n\nas a MOTs the moment a shipper offers it for transportation in a manner not authorized under\n§ 173.6. However, the HMR permits the hazard classes you described, with certain\nexceptions, to be transported by motor vehicle, rail car, and aircraft, in combination\npackagings that comply with the provisions in § 173.13. Packagings that comply with\n§ 173.13 are excepted from the labeling, placarding, and segregation requirements of the\nHMR. Please note that this exception does not permit materials that are poisonous by\ninhalation to be transported by motor vehicle, railcar, or aircraft. Also, while employees that\ntransport hazardous materials under the MOTs exception must be trained on and comply only\nwith the MOTs requirements prescribed in§ 173.6, employees that transport hazardous\nmaterials in conformance with§ 173.13 must be hazmat trained in conformance with 49 CFR\nPart 172, Subpart H (Training).\nI hope this satisfies your request.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n2\n\n<<<PAGE 3>>>\n\nEdmonson\n9173~\"\nDrakeford, Carolyn (PHMSA)\nFrom:\nSent:\nTo:\nSubject:\nAttachments: fVl cui-en<& f 6 r Tv-a.c{e\nINFOCNTR (PHMSA)\nFriday, February 22, 2013 9:56AM\nDrakeford, Carolyn (PHMSA)\nFW: Appeal of Letter of Interpretation\n060075.pdf; Oxy Letter of Interpretation. pdf; Request for formal letter of interpretation\n-----Original Message-----\nFrom: INFOCNTR (PHMSA)\nSent: Thursday, February 14, 2013 1:29 PM\nTo: 'norman_dodson@oxy.com'\nSubject: FW: Appeal of Letter of Interpretation\nHi Carolyn,\nWe received the following request for a formal letter of interpretation.\nThanks,\nVictoria\n-----Original Message-----\nFrom: Norman Dodson@oxy.com [mailto:Norman Dodson@oxy.com]\nSent: Thursday, February 14, 2013 10:45 AM\nTo: INFOCNTR (PHMSA)\nSubject: Appeal of Letter of Interpretation\nI requested a formal letter of interpretation regarding 49 CFR 173.6 Materials of Trade exceptions in September of 2012\n(see attached email). I received the formal letter dated December 11, 2012 in December. Mr. Foster, Chief of the\nRegulatory Review and Renivention Branch, essentially denies my company's ability to use this exception to enable our\ncustomers to transport samples of our product to a certified packager of Hazardous Goods in a private vehicle. The\npurpose of doing so is to send the sample to us for analysis. I have attached Mr. Foster's letter.\nMr. Foster cites as the reason for the denial of this exception is that the samples we are having our customers transport\nare being transported solely for the purpose of being packaged for shipment. Not in direct support of their business. I\nwish to state that our customers are transporting these samples in support of their business because the product is not\nperforming correctly and therefore has disrupted their process. For this reason, they must send it to us for analysis. Since\nthey have no one certified to do this correctly, it must be transported to someone who can.\nI would like to respectfully appeal this decision, and site as an example that we can use this exemption, another attached\nletter of interpretation to West Marine Products Inc. in June of 2006, reference No. 06-0075. I cite as an example, the first\nquestion that is answered yes. OxyChem's letter of interpretation is reference no. 12-0208. Please let me know your\ndecision as soon as possible. Thanks and best regards.\nNorman Dodson\nTechnical Services\nOxyChem\nOffice: 316-529-7577\nFax: 713-985-1507\n1\n\n<<<PAGE 4>>>\n\nThe information contained in this message may be confidential and/or privileged. This message is intended to be\nreviewed by the individual or organization named above. If you are not the intended recipient, you are hereby notified\nthat any review, dissemination or copying of this message or the information contained herein and in its attachments, if\nany, is prohibited. If you have received this message in error, please immediately notify the sender by return e-mail and\ndelete this message and attachments from your system.\n2\n------------\n-------~------------\n\n<<<PAGE 5>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\ni200 New Jersey Avenue, SE\nWashington, D.C. 20590\nDEC 1 1 2012\nMr. Norman Dodson\nOccidental Chemical Company\n6200 South Ridge Road\nWichita, KS 67026\nReference No. 12-0208\nDear Mr. Dodson:\nThis is in response to your September 14, 2012 e-mail requesting clarification of the\nexceptions for Materials of Trade (MOTs) under§ 173.6 of the Hazardous Materials\nRegulations (HMR; 49 CFR Parts 171-180). In your letter, you state that to analyze the\nquality of the chemicals your company supplies to its customers, these customers send\nsamples of these chemicals in amounts of one pint or less to your company for testing.\nYou state customers return the following materials to your company for testing:\n1) UN 1496 Sodium Chlorite, 5.1 (oxidizer), PG II\n2) UN 1593 Dichloromethane, 6.1 (poisonous), PG III\n3) UN 1789 Hydrochloric acid, 8 (corrosive), PG II and III\n4) UN 1846 Carbon tetrachloride, 6.1, PG II\n5) UN 1888 Chloroform, 6.1, PG III\n6) UN 1897 Tetrachloroethylene, 6.1, PG III\n7) UN 1908 Chlorite solution, 8, PG II and III (the primary material being\nshipped)\nYou also state some of your customers do not have employees trained to prepare and offer\nhazardous materials for transport in conformance with the HMR, but a carrier informed you\nthat your customers can transport their chemicals as MOTs by motor vehicle to the carrier\nfor its staff to properly package and transport because your customers are not transporting\nthe samples for commercial purposes. You ask if this statement is correct. The answer is no.\nA \"Material of trade\" is a hazardous material, other than a hazardous waste, that is carried on\na motor vehicle: (1) for the purpose of protecting the health and safety of the motor vehicle\noperator or passengers; (2) for the purpose of supporting the operation or maintenance of a\nmotor vehicle (including its auxiliary equipment); or (3) by a private motor carrier\n(including vehicles operated by a rail carrier) in direct support of a principal business that is\nother than transportation by motor vehicle (see§ 171.8). Your customers are transporting\nchemical samples to the carrier solely for the purpose of offering them for transportation in\n\n<<<PAGE 6>>>\n\ncommerce, not to perform tasks that are in direct support of a business that is other than\ntransportation by motor vehicle, criteria (3) in the definition of \"material of trade.\"\nTherefore, the chemicals must be transported under other provisions in the HMR authorized\nfor the specific hazards each sample contains at the time it is offered for transportation.\nI hope this satisfies your request.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n2\n\n<<<PAGE 7>>>\n\nDrakeford, Carolyn (PHMSA)\nFrom:\nSent:\nTo:\nSubject:\nImportance:\nNorman_Dodson@oxy.com\nFriday, September 14, 2012 4:20PM\nINFOCNTR (PHMSA)\nRequest for formal letter of interpretation\nHigh\nI would like to request a formal letter of interpretation regarding 49 CFR 173.6 Materials of trade exceptions.\nMy company sells commodity chemicals to other companies. On occasion, questions arise regarding the quality of this\nproduct making it necessary for the customer to need to ship a small sample ( 1 pint or less) to us for follow up analyses.\nProblems arise when the customer does not have trained and certified people to prepare and offer for shipment, these\nhazardous products. The next choice would be for them to take this one pint sample to a company that offers these\nservices. An example of such a company would be AirPack Inc. A problem may exist with this option if an employee of\nthe customer company places the sample in a motor vehicle and drives it to the packaging company. I have been told by\nAirPack Inc., that they could lawfully do this under 49 CFR 173.6 as long as the container was of the proper integrity and\nsecured from shifting. The reasoning being that the customer is not transporting the samples over the road for\ncommercial purposes. The one pint chemical samples that these customers would be transporting would be the\nfollowing:\nChloroform II UN1888 //Toxic II 6.1 II PG Ill Dichloromethane // UN1593 //Toxic II 6.1 II PG Ill Tetrachloroethylene\n//UN1897 //Toxic II 6.1 II PG Ill Carbon Tetrachloride II UN1846 //Toxic II 6.1 II PGII Sodium Chlorite II UN1496 II\nOxidizer II 5.1 II PGII\nChlorite Solution I I UN1908 I I Corrosive I I 8 I I PGII & Ill (This would be the primary one shipped)\nHydrochloric Acid// UN1789 II Corrosive II 8 II PG II & Ill\nWe would like to be able to advise these customers that they can legally transport these samples to a certified hazmat\npackager for preparation for shipping. However, we need to know that we are interpreting this correctly. Your prompt\nattention to this request would be greatly appreciated. You may send the letter to my attention at this email address, or\nif you need to send it by regular mail delivery, the address is:\nAttn: Norman Dodson\nOccidental Chemical Co.\n6200 South Ridge Road\nWichita, KS 67026\nThanks and best regards.\nNorman Dodson\nTechnical Services\nOxyChem\nOffice: 316-529-7577\nFax: 713-985-1507\nnorman dodson@oxy.com\nThe information contained in this message may be confidential and/or privileged. This message is intended to be\nreviewed by the individual or organization named above. If you are not the intended recipient, you are hereby notified\nthat any review, dissemination or copying of this message or the information contained herein and in its attachments, if\n1\n\n<<<PAGE 8>>>\n\nU.S. Department\nof Transportation\nPipeline and\nHazardous Materials Safety\nAdministration\nJUN 6 2006\n400 Seventh Street, S.W.\nWashington, O.C. 20590\nMr. Todd A. Nash\nDirector, Regulatory Compliance\nWest Marine Products, Inc.\n500 Westridge Drive\nWatsonville, CA 95076\nReference No. 06-0075\nDear Mr. Nash,\nThis is in response to your March 24, 2006 letter requesting clarification on whether your\nretail organization's employees may routinely deliver hazardous materials to your store\nand customer locations using private and for-hire vehicles under the Materials of Trade\n(MOTs) exceptions prescribed in§§ 171.8 and 173.6 of the Hazardous Materials\nRegulations (HMR; 49 CFR Parts 171-180). You stated these items are for replenishment\nof inventory or to fulfill an existing sale. We have paraphrased your questions and\nanswered them in the order provided.\nQl. The wholesale business utilizes private company vehicles and drivers to deliver\nsold goods and return unwanted items from customer locations. May those drivers\nuse the MOTs exception under these circumstances if the hazardous materials meet\nthe MOTs definition prescribed in § 171.8 and comply with applicable\nrequirements under§ 173.6?\nAl. Yes. Under the HMR, one of the defining conditions for MOTs is a hazardous\nmaterial, other that a hazardous waste, transported by a private motor carrier in\ndirect support of a principal business that is other than transportation by motor\nvehicle. If a wholesale business uses its own vehicles and driver~ to transport\ngoods to and from customer locations, then the MOTs exception in § 173.6 may be\nutilized. Note, however, that if the wholesale company hires a motor carrier to\ntransport goods to and from customer locations, the MOTs exception does not\napply.\nQ2. May the drivers transport hazardous materials products marked with the proper\nshipping description \"Consumer commodity, ORM-D\" under the MOTs exception\nprovided they comply with the definition for MOTs under§ 171.8 and applicable\nrequirements under§ 173.6?\nA2. Ye>. Consumer commodities that conform to the HMR requiremv1ts applicable to\nMOTs may be transported as MOTs.\n171· f\n!13. (p\n1111111111 111111111\n060075\n\n<<<PAGE 9>>>\n\nQ3. Many of the items to be transported are not eligible for the limited quantity or\nconsumer commodity exceptions under the HMR (e.g., a 1 gallon can of acetone).\nProvided a package containing these materials conforms to the MOTs requirements\nprescribed in §§ 171.8 and 173.6, and the weight of MOTs aboard the motor\nvehicle does not exceed 220 kg (440 pounds), would the package be eligible for the\nMOTs exceptions?\nA3. Yes.\nQ4. May a store associate transport hazardous materials in his or her own vehicle\nbetween stores or to a customer location using the MOTs exceptions provided the\npackages comply with the definition for MOTs under § 171.8 and applicable\nrequirements under § 173.6?\nA4. Yes. See Answer AI above.\nI hope this information is helpful.\nSincerely,\nf . I II\n_j lr- J::J ' /\nS~san Gorsky 6\nRegulations Officer\nOffice of Hazardous Materials Standards\n-------·---------~--~-\n\n<<<PAGE 10>>>\n\na West Marine\n~ivnonson\n'§113.Z,\nMoT\nLJI:,. -oo lS\nMarch 24, 2006\nU.S. Department of Transportation\nPipeline and Hazardous Materials Safety Administration\nOffice of Hazardous Materials Standards (PHH -1 0)\n400 7'h Street, S.W.\nWashington, DC 20590-0001\nRe: Applicability of 173.6 to retailers\nTo: Susan Gorsky, Regulations Officer\nThis letter is to follow-up on the phone conversation we had on March 24, 2006 concerning compliance with the\nMaterials of Trade exception covered under 49 CFR, Sections 171.8 & 173.6. West Marine has ques.tions regarding a\nprevious interpretation you provided in the August 23, 2005 letter to Mark U. DuBois at Reichold (RefNo. 0 1-0012).\nAccording to the aforementioned letter, \"It is acceptable for companies that routinely transport and deliver hazardous\nmaterials to use the MOTs exception.\" West Marine is a retail organization that also has a wholesale division named\nPort Supply. Routinely West Marine/Port Supply transports hazardous materials to our store and customer locations\nusing both private and for hire vehicles. These products are either for replenishment of inventory or to fulfill an existing\nsale. West Marine would like to request an official letter of interpretation from your office clarif'y:ing the questions\nbelow.\nL The wholesale business utilizes private company vehicles and drivers to deliver sold goods and return unwanted\nitems from customer locations. May those drivers utilize the MOTs exception in these circumstances assuming\nthe hazardous materials meet the MOTs definition in §171.8 and all applicable conditions of §173.6?\n2. May the drivers transport products marked \"Consumer Commodity ORM-D\" as their common or proper\nshipping name under the MOTs exceptions assuming the hazardous materials meet the MOTs definition in\n§ 171.8 and all applicable conditions of §173.6?\n3. Many of the items transported would not be eligible for the Limited Quantity or Consumer Commodity ORM-D\nprovision (e.g. 1 gallon can of acetone). Would a package with these products be acceptabl<: under MOTs\n___________ -aJassti!Ping the hazardous-materials meet the MO'fs-defmitio,l in § 171.8 and allapplicablh>e~c~o~n-\"di\"'·u.,.·o'\"\"n\"'s'o~f'§\"'l..,7.,.3'-.6C'l'f~------\n4. May a store associate transport a hazardous material in their own vehicle between stores or tc Cl customer\nlocation assuming the hazardous materials meet the MOTs defmition in § 171.8 and all applica0le conditions of\n§173.6?\nI look forward to your response. Should you have any questions or require additional information, pJ,~ase do not hesitate\nto contact me at (831) 761-4470.\nVery truly yours,\nTodd A. Nash\nDirector of Regulatory Compliance\nWest Marine Products Inc.\nPage 1 of l\n-----·~---------","truncated":false,"body_characters":17972}