{"operation":"document","citation":"13-0064","title":"HMT Associates, L.L.C. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2013-06-06","effective_on":null,"summary":"13-0064 response to HMT Associates, L.L.C. concerning 171.8, 173.170, 173.171.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0064.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0064.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0064","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2013/130064.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\nJUN 0 6 2013\nMr. E.A. Altemos\nHMT Associates, L.L.C.\n600 King Street, Suite 300\nAlexandria, VA 22314-3105\nRefNo.: 13-0064\nDear Mr. Altemos:\nThis is a response to your March 27, 2013 email requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 1 00-185) with regard to the exceptions for the\ntransport of black or smokeless powder for small anns. Specifically, you request\nclarification of the term \"motor vehicle\" as used in § § 173.170 and 173.171.\nYou note that by using the term \"motor vehicle\" instead of\"transport vehicle,\" the limitation\nof 45.4 kg ( 100 pounds) net mass is aggregated amongst all cargo-carrying bodies of a\nmotor vehicle. You believe that this is an error and the term intended to be used was\n\"transport vehicle,\" so that each cargo-carrying body could contain up to 45.4 kg (1 00\npounds) net mass of black or smokeless powder for small arms that is reclassified as a\nDivision 4.1 material.\nThe term \"motor vehicle\" as defined in§ 171.8 includes a vehicle, machine, tractor, trailer,\nor semitrailer, or any combination thereof. Furthermore, the term \"transport vehicle\" is\ndefined as a cargo-carrying vehicle such as an automobile, van, tractor, truck, semitrailer,\ntank car or rail car used for the transportation of cargo by any mode. Each cargo-carrying\nbody (trailer, rail car, etc.) is a separate transport vehicle. The use of the term \"motor\nvehicle\" in the exceptions for black and smokeless powder for small arms in§§ 173.170 and\n173.171 is accurate. Please note that the reclassification of these materials to Division 4.1 is\nan exception and there is no limit on the amount of black and smokeless powder for small\narms able to be transported on a single motor vehicle as fully regulated Class I explosives.\nI hope this information is helpful. If you have any more questions, please do not hesitate to\ncontact this office.\nSincerely,\n!;; il~ ({;5~\nrector\nStandards and Rulemaking Division\n\n<<<PAGE 2>>>\n\nHMT ASSOCIATES, L.L.C.\nWRITERS DIRECT DIAL NUMBER\n703-549-0727, ext. 11\n603KINGST.\nSUITE300\nALEXANDRlA, VA 22314-3105\nE.A. ALTEMOS\nPATRICIA A. QUINN\n703-549-0727\nFACSIMILIE: 703-549-0727\nSU_Cth_ak.\n~1'11·cg\n~ l/3· 110\nMarch 27, 2013\n~ 173.11/ D e..r:.t· n ,~0 ·y) s\nIS -OOfo~\nMr. Charles Betts\nDirector, Standards and\nRulemaking (PHH-10)\nPipeline and Hazardous Materials\nSafety Administration\nDepartment of Transportation\n1200 New Jersey Avenue, SE\nEast Building, 2nd Floor\nWashington, D.C. 20590-0001\nDear Mr. Betts,\nThis is to request clarification of the intent of the use of the term \"motor vehicle\"\nin the context of the exceptions for the transport of not more than 45.4 kg (100 pounds) of\nblack or smokeless powder for small arms, as prescribed in §§173.170 and 173.171,\nrespectively, of the DOT Hazardous Materials Regulations ( 49 CFR Parts 171-180, \"the\nHMR\").1 Under these provisions, black and smokeless powder that may otherwise have\nbeen classified in Class 1 may, under certain conditions and limitations, be classified and\ntransported as a Division 4.1 flammable solid. One of the conditions attaching to these\nclassification exceptions is that the total quantity of powder in a \"motor vehicle\" does not\nexceed 45.4 kg (100 pounds).\nThe term \"motor vehicle\" is defined, in pertinent part, in § 171.8 of the HMR to\ninclude \"a vehicle, machine, tractor, trailer, or semitrailer, or any combination thereof,\npropelled or drawn by mechanical power and used upon the highways in the\ntransportation of passengers or property\" (emphasis added). Thus, a tractor pulling two\nor three trailers (known commonly in the motor carrier industry as a \"double\" or \"triple\")\nis, by this definition, a single \"motor vehicle.\" Section 171.8 also includes a definition\nfor a \"transport vehicle\" which provides that term includes \"a cargo-carrying vehicle such\nas an automobile, van, tractor, truck, semitrailer, tank car or rail car used for the\nNote that the 45.4 kg (100 pound) classification exception for smokeless powder prescribed in\n§173.171 is further reflected as a motor carrier limitation in §177.838(g) of the HMR\n\n<<<PAGE 3>>>\n\nH MT ASSOCIATES, L. L.C.\nMr. Charles Betts\nMarch 27, 2013\nPage2\ntransportation of cargo by any mode. Each cargo carrying body (trailer, rail car, etc.) is a\nseparate transport vehicle\" (emphasis added). Thus, one \"motor vehicle\" may consist of\nmore than one \"transport vehicles.\"\nIt would appear that the terms \"transport vehicle\" and \"motor vehicle\" are used\nalmost interchangeably in the HMR and in related Agency correspondence, and not\nalways with due regard accorded to the distinction between the two terms. One example\nis the attached RSP A Chief Counsel's letter related to towing of a motor vehiclejtran~2rt\nvehicle which uses.both terms in essentially the sam-e context. Nevertheless,· most\nrequirements and exceptions in Parts 172 and 173 of the HMR tend to be applied on the\nbasis of a \"transport vehicle\" rather than a \"motor vehicle.\" For example, placarding\nrequirements attach to a \"transport vehicle\" and not a \"motor vehicle,\" as, indeed, does\nthe 454 kg (1,001 pound) placarding exception for non-bulk packages (see §§172.504(a)\nand (c), respectively). General marking requirements applicable to highway unit (other\nthan cargo tanks) also are prescribed on the basis of the individual \"transport vehicle\"\n(see, for example, § 172.301(a)(3) and its \"companion\"§ 177.823). In Part 177 of the\nHMR, the motor carrier requirements for segregation are prescribed on the basis of a\n\"transport vehicle\" and not a \"motor vehicle\" (see§ 177.848). While it is certainly true\nthat \"motor vehicle\" is used in various provisions in Part 177 of the HMR, for example,\nin the general loading requirements in § 177 .834(a), for the most part such requirements\nare applicable to each \"transport vehicle\" that may comprise a \"motor vehicle\" - and so\nthat term is clearly appropriate with regard to certain regulatory provisions. But even in\nconnection with this provision, the terms are sometimes used by PHMSA without strict\nregard to the precise definitions. To illustrate, the attached guide to consumer fireworks\nmakes an interesting comment that materials loaded into a \"transport vehicle\" must be\nloaded, blocked and braced in accordance with Part 177, Subpart B. As you are aware,\nthe regulations related to loading, blocking and bracing are at§ 177.834, and that section\nspecifically speaks to \"[p]ackages secured in a motor vehicle\" (see §177.834(a)). Thus,\nwhile the choice of terms in any particular provision must be dependent on the precise\nintent and context, the terms \"motor vehicle\" and \"transport vehicle\" are sometimes\nemployed without strict regard to the definitional distinction between them.\nCertain PHMSA interpretation letters also support the notion that regulatory\nexceptions are intended to apply to the individual \"transport vehicle\" within a \"motor\nvehicle.\" For example, Interpretation 09-120 (copy attached), states that the 454 kg\n(1001 pound) placarding exception for non-bulk packages applies independently to a\ntruck towing a trailer, even though the aggregate gross weight of Table 2 hazardous\nmaterials on the \"motor vehicle\" may exceed that limit. Similarly, PHMSA\nInterpretation 10-0261 (copy attached) confirms the intent that the materials oftrade\n(MOTs) exception can be invoked for an individual transport vehicle within a motor\nvehicle (i.e., a utility truck), even when another \"transport vehicle\" (i.e., a trailer) in the\nmotor vehicle does not qualifY for that exception. In the context of this general\n\n<<<PAGE 4>>>\n\nHMT ASSOCIATES, L.L.C.\nMr. Charles Betts\nMarch 27,2013\nPage 3\nphilosophy with regard to applicability of regulatory exceptions to transport vehicles, it is\ncurious that the same concept should not apply to the 45.4 kg (1 00 pound) exceptions for\nblack and smokeless powder, and, indeed, it is arguably the actual intent that it does.\nMoreover, a careful consideration of the wording for the 45.4 kg ( 100 pound)\nexception as employed in § § 173.170 and 173.171 further suggests this is the actual intent.\nThe classification exception can be applied based on limiting the weight of powder in any\nrail car to 45.4 kg (100 pounds)- with each rail car, by definition, a \"transport vehicle.\"\nThe limitation is not dependent on the total quantity of powder in any train or series of\nrail cars. Both exceptions also apply to individual freight containers - each freight\ncontainer, albeit not by definition a \"transport vehicle,\" certainly similar to one in terms\nof its use for the transportation of packaged hazardous materials. Thus, there is an\napparent inconsistency if the exception applies, for example in rail transport, to each\nindividual \"transport vehicle,\" whereas for transport by highway it would not apply to the\nindividual \"transport vehicle\" but rather to the aggregate quantity in a \"motor vehicle.\"\nConsequently, in consideration of the foregoing it appears that use of the term\n\"motor vehicle\" in §§ 173.170 and 173.171 may more be attributed to an unfortunate\nchoice of words than reflective of the actual intent of the classification exception.\nTherefore, confirmation would be appreciated at your earliest convenience that,\nnotwithstanding a precise reading of the classification exceptions in §§ 173.170 and\n173.171 in the light of the relevant definitions in §171.8, it is PHMSA's intent that the\nexceptions in those sections apply based on the quantity of powder in any ''transport\nvehicle.\"\nThank you for your consideration of this matter, and please do not hesitate to\ncontact me if you have questions or require additional information in relation to this\nrequest.\nSincerely,\nE. A. Altemos\nEnclosed:\nRSPA Chief Counsel Letter Dated June 13, 1997\nPHMSA Interpretations 09~0120 and 10-0261\nConsumer Fireworks Advisory Letter\n\n<<<PAGE 5>>>\n\nOffice of tne\nChref Counsel\n-'00 Sevenlh 51 . S W\nWash~r~gton 0 C 20590\nCynthia Garcia, Esq.\nAssistant City Attorney .\nOffice of the City Attorney\n1000 Throckmorton\nFort Worth, Texas 76102\nDear Ms. Garcia:\nI am responding to your February 7, 1997 letter and telephone\nconversations with a member of my staff concerning the\njurisdiction of the Federal hazardous materials transportation\nlaw (Federal hazmat law) (49 U.S.C. §§ 5101 et seq.) and the\nHazardous Materials Regulations (HMR) (49 CFR Parts 171-180) as\nthey apply to wreckers towing motor vehicles that contain\nhazardous materials. I apologize for the delay in responding to\nyour letter and hope this delay has not caused you any\ninconvenience.\nThe Research and Special Programs Administration (RSPA) is one\nof the agencies within the u.s. Department of Transportation\nthat is responsible for enforcing the requirements of the\nFederal hazmat law and the HMR. The HMR includes requirements\nfor the classification, hazard communication, packaging,\nhandling, loading and unloading of hazardous materials offered\nfor or transported in commerce. As stated in 49 C.F.R.\n§ 171.1, RSPA's jurisdiction, with respect to transportation by\npublic highway is currently limited to interstate and foreign\ncarriers by motor vehicle, and intrastate carriers by motor\nvehicle so far as the HMR apply to hazardous wastes, hazardous\nsubstances, flammable cryogenic liquids in portable tanks and\ncargo tanks, and marine pollutants. Effective October 1, 1997,\nthe scope of the HMR expands to include the offering for\ntransportation or transporting hazardous materials in\ninterstate, intrastate, and foreign commerce by motor vehicle.\nRSPA does view a wrecker which is towing a motor vehicle\ncontaining hazardous materials on a public highway, as\ntransporting hazardous materials in commerce. Therefore, the\nFederal hazmat law and the HMR would apply to a wrecker which\ntows a disabled motor vehicle containing hazardous materials on\n\n<<<PAGE 6>>>\n\n2\na public highway. However, the Federal hazmat law and the HMR\ndo not apply to transportation that is entirely on private\nproperty and neither follows nor crosses a public highway.\nRSPA has provided limited relief from the HHR under 49 c.F.R.\n§ 177.823. This provision allows, under emergency situations\nwhere the movement of the disabled transport vehicle is\nnecessary to protect life or property, a vehicle containing\nhazardous materials to be moved without being marked and\nplacarded in accordance with the HMR. Under this exception, a\nwrecker would not need a placard and markings when towing a\ndisabled transport vehicle on a public highway. This exception\nonly applies to the extent an emergency situation exists and\nmovement of the disabled transport vehicle is necessary to\nprotect life or property. Thus, under this exception, the\ndisabled transport vehicle may be moved only the minimum\ndistance necessary to reach a place where the transport vehicle\ncan be repaired safely.\nRSPA has provided this limited exception to encourage the rapid\nremoval of any disabled transport vehicle from a public highway\nduring an emergency situation-. However, during a nonemergency\nsituation, the placarding, marking and all other provisions of\nthe HMR would apply to a wrecker when it is towing a disabled\ntransport vehicle on a public highway. Under these provisions,\nthe operator of the wrecker must verify that the disabled\ntransport vehicle is displaying the required placards and there\nare accompanying shipping papers. The shipping papers must\naccompany the disabled transport vehicle to its new location.\nThe operator of the wrecker must have general awareness,\nsafety, and function-specific hazard materials training (see\n49 C.F.R. Part 172, Subpart H). These HMR requirements provide\na minimal level of safety when the operator of wrecker assists\na disabled transport vehicle which contains hazardous\nmaterials.\nYour letter also asked whether the operator of the wrecker\nwould have to comply with 49 CFR Parts 171-180 if there was a\nhazardous material incident during the towing operation. The\nanswer is yes, because the wrecker's operator/owner is\nconsidered a ~carrier\" as defined in 49 C.F.R. § 171.8 and as\nthe term is used in 49 C.F.R. §§ 171.15 or 171.16. In\naddition, RSPA encourages each person to report promptly each\nhazardous materials incident which, in the person's judgment,\nposes a continuing danger to life or property. In addition,\nthe wrecker's operator/owner may be subject to a variety of\nother Federal, state or local regulations in the event of a\nhazardous materials incident.\n\n<<<PAGE 7>>>\n\n' I\nI\nI\n3\nIn addition, you asked whether 49 C.F.R. Part 387 or any other\nregulations would apply to the wrecker's activities. Part 387\nprescribes minimum levels of financial responsibility for motor\ncarriers and is not part of HMR. It is my understanding that\nthe Federal Highway Administration, Office of the Chief\nCounsel, Motor Carrier Law Division has received a copy of your\nletter and has responded to this issue. If you have any\nfurther questions concerning minimum levels of financial\nresponsibility for motor carriers, please contact Mr. Joseph\nSolomey at (202) 366-0834.\nI hope this response is useful. If you have any additional\nquestions concerning the law or regulations discussed in this\nletter, please call Robert A. Monniere at 202-366-4400.\nSincerely,\n~,a,~ _-z-/.\nEdward H. Bonekemper, III .\nAssistant Chief Counsel for\nHazardous Materials Safety\n\n<<<PAGE 8>>>\n\nU.S. Department of Transportation\nPipeline and Hazardous Materials\nSafety Administration\n1200 New Jersey Ave, SE\nWashington, D.C. 20590\nAPR 0 1 2010\nMr. Gary LaBreck\nFleet Safety Services, Inc\nl2 Harvard Street\nWorcester, MA 01609\nRef. No. 09-0120\nDear Mr. LaBreck:\nThis responds to your letter requesting clarification of the placarding requirements wilder the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ~k\nwhether a pickup truck towing a trailer is considered two separate transport vehicles for the\npurposes of placarding under the HMR. Your client intends to t~sport less than 1 ,d,o 1 lbs\naggregate gross weight of non-toxi~ com~res~ed g~es in both thej pick~p true~ and t'e trailer\nwhere the total aggregate gross wetght of cylinders m both cargo-~arrymg bodtes exqeeds\nl,OOllbs. r\n,,\n,,\nAs you are aware, § 171.8 of the HMR defines a transport vehicl:e as \"a cargo-carryirlg\nvehicle such as an automobile, van, tractor, truck, semitrailer, tank car or railcar used] for the\ntransportation of cargo by any mode. Each cargo-carrying body (trailer, rail car, etc.1is a\nseparate transport vehicle.\" Additionally, you are aware that placards are not require on a\ntransport vehicle which contains less than 454 kg ( 1.001 lbs) aggregate gross weight , f\nhazardous materials covered by table 2 of paragraph (e) under§ 172.504. In the scenfn'io you\ndescribe. the pick-up truck and trailer are two separate transport vehicles each carrying less\nthan 454 kg (l,OOllbs) of eligible hazardous materials. Therefore, neither the pick-up truck\nnor the trailer is required to be placarded in highway transportation.\nI trust this satisfies your inquiry. Please contact us if we can be of further assistance.\nHattie L. Mitchell\nChief, Regulatory Review and Reinvention\nOffice of Hazardous Materials Standards\n\n<<<PAGE 9>>>\n\n· Drakeford, Carolyn <PHMSA>\nINFOCNTR <PHMSA> ~From:\n. Sent: Wednesday, May 13, 2009 3:34PM .\nTo:\nDrakeford, Carolyn :::PHMSA> i\nSubject: FW: Hazmat lnforma• lion Center Feedback: General information, Regst•· a~d Defin~ions\n(Sections 171.1 &rulash; 171.26)\n111~\n-----original Message----- . · ~~ll{/rz} • $ ~(),)\nFrom: PHMSA-Feedback [mailto:PHMSA-Feedback]\n• ' '.•. • ,:..J '1 I\nsent: Wednesday, May 13, 2009 3:06 PM n,..)-,&11\\~ 1 •. ,/ ()}jl~ _card1Y1Cf\nTo: PHMSA HM InfoCenter; PHMSA Webmaster CJo/•(j ~~~\nSubject: Hazmat Information Center feedback: General Information, Regulatiozjls, and\nDefinitions (Sections 171.1 &ndash;: 171.26) '\nREQUEST FOR A INTERPRETATION LETTER;\n§171.8 Definitions and abbreviation~.\nI\nTransport vehicle means a cargo-carrying vehicle such as an automobile, vani. tractor,\ntruck, semitrailer, tank car or rait car used for the transportation of cargo by any mode.\nEach cargo-carrying body (trailer, tail car, etc.) is a separate transport iehicle.\n§172.504 General placarding require~ents.\n(c) (1) A transport vehicle or freig~t container which\npounds) aggregate gross weight of hazardous materials\nof this section; or ·\nCould I please receive an interpret~tion letter on the\nl\ncontains less than\ncove~ed by Table 2\nI\n!\nfodowing?\n!\n454 kg (1001\nof)paragraph {e}\nI have a client that does environmental testing. They trave,l with a Pickup truck which as\na GVWR of 10,001 lbs or more. They ?lso tow a trailer that \\has a GVWR of 7,QOO lbs or\nmore.\nThey haul cylinders of compressed g$s in the trailer. They \\keep the weight ~nder 454kg\n(1001 pounds). Per 172.504(c) (1) itidoes not meet the plac~rding requiremen~s.\nUnder 171.8 it states that the truci and trailer are a sep~rate transport vJhicle.\nI .\nThe question for the interpretation,letter is, can they ca~ry cylinders in ~ach separate\nvehicle as long as each vehicle has a weight under 454kg (~001 pounds)?\nName: Gary LaBreck\nOrganization: Fleet Safety Services Inc.\nEmail: glabreck@fleet-safety.com\nAddress: 12 Harvard Street\nCity: Worcester\nZip Code: 01609\nPhone: 508-868-1380\nFAX: 508-831-7611\n1\n\n<<<PAGE 10>>>\n\nU.S. Department of Transportation\nPipeline and Hazardous Materials\nSafety Administration\nFEB 2 8 2011\n1200 New Jersey Ave, SE\nWashington. D.C. 20590\nMr. Chuck Denny\nDuke Energy Corporation\n526 South Church Street, EC13K\nCharlotte, NC 28202\nReference No.: 10-0261\nDear Mr. Denny:\nThis responds to your email requesting clarification of the Hazardous Materials Regulations\n(HMR; 49 CFR Parts 171-180) applicable to a transport vehicle. Specifically, you ask for\nclarification on the definition of a transport vehicle and how this defmition affects the use of the\nexceptions for materials of trade (MOTs) specified in§ 173.6 and batteries specified in\n§ 173.159 and 173.159a.\nIn your email, you describe a scenario in which a utility truck is pulling a trailer. The utility\ntruck is carrying material meeting the MOTs exception, specified in § 173.6, while the trailer\ncontains electric storage batteries. Your questions are paraphrased and answered as follows:\n01: Can a utility truck be considered a separate transport vehicle from a trailer that is\nconnected to it?\nA1: The answer is yes. Transport vehicle means a cargo-carrying vehicle, such as an\nautomobile, van, tractor, truck, semitrailer, tank car or rail car used for the transportation\nof cargo by any mode. Each cargo-carrying body (trailer, rail car, etc.) is a separate\ntransport vehicle. (See§ 171.8.)\nQ2: If the answer to Ql is yes, may each transport vehicle utilize separate exceptions\nspecified in the HMR? Specifically, can the utility truck use the MOTs exception\nspecified in§ 173.6 while the trailer uses the electric storage battery exception specified\nin§ 173.159(e)?\nA2: The answer is yes. If a transport vehicle contains any other hazardous materials, even\nthose excepted from all or part of the HMR (e.g., materials of trade; see§ 173.6), the\nexception specified in§ 173.159(e) does not apply. However, since the utility truck and\ntrailer are considered separate transport vehicles a person may utilize separate exceptions\nin each transport vehicle provided they meet all the requirements specified for each\nexception (i.e.§§ 173.6 and 173.159(e)).\n--\n\n<<<PAGE 11>>>\n\n03: A3: If a transport vehicle contains both spillable and non-spillable lead acid batteries, can that\ntransport vehicle utilize the exceptions specified in§§ 173.159(e) and 173.159a\nsimultaneously?\nThe answer is yes. Electric storage batteries containing electrolyte or corrosive battery\nfluid are excepted from the HMR when transported in accordance with the provisions\nspecified in§ 173.159(e). The exception in§ 173.159(e) is applicable to \"Electric\nstorage batteries containing electrolyte or corrosive battery fluid\" and does not\ndifferentiate between spillable and non-spillable lead acid batteries. The condition\nspecified in§ 173.159(e)(l) states that no other hazardous materials may be transported\non the same vehicle. For the purposes of this exception, spillable and non-spillable\nbatteries are both considered \"Electric storage batteries containing electrolyte or\ncorrosive battery fluid.\" Therefore, provided no other hazardous materials are loaded in\nthe transport vehicle with the spillable and non-spillable electric storage batteries and all\nthe requirements of§§ 173.159 and 173.159a are met, the electric storage batteries would\nbe excepted from the HMR.\nI hope this satisfies your inquiry. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 12>>>\n\n13 ene cl ;c._{-\n~11.3.159\nDrakeford, Carolyn (PHMSA)\nBaHen'es\nFrom: INFOCNTR (PHMSA)\nSent:\nTo:\nSubject: Wednesday, December 15, 2010 3:56 PM\nDrakeford, Carolyn (PHMSA) l D- DJ...b I\nFW: Hazmat Information Center Feedback: Shippers-General Requirements for Shipments\nand Packagings (Sections 173.1 &ndash; 173.476)\n~/73·~\nHi Carolyn,\nChuck Denny requested we forward this e-mail as a request for a formal letter of\ninterpretation.\nThanks,\nVictoria Lehman\n202-366-1035\n-----Original Message-----\nFrom: PHMSA-Feedback [mailto:PHMSA-Feedback]\nSent: Tuesday, December 14, 2010 2:37 PM\nTo: PHMSA HM InfoCenter; PHMSA Webmaster\nSubject: Hazmat Information Center Feedback: Shippers-General Requirements for Shipments and\nPackagings (Sections 173.1 &ndash; 173.476)\nThe following questions pertain to battery shipments and reference DOT interpretation letters\n06-0062, 07-0026 and 98-0532.\nIssue 1\nA utility truck is pulling a trailer. The utility truck is carrying material under the\nMaterials of Trade exception, 49 CFR 173.6. The trailer contains only lead acid batteries.\nCan the trailer transport the lead acid batteries exception under 49 CFR 173.159 (e) while\nconnected to the utility truck carrying hazardous materials under the Materials of Trade\nexception 49 CFR 173.6? Per DOT interpretation 07-0026, the battery exception 49 CFR 173.159\n(e) cannot be used with the Materials of Trade exception 49 CFR 173.6 when they are being\ntransported on the same vehicle. Per DOT Interpretation, 98-0532, each cargo-carrying body\n(trailer) is a separate transport vehicle. Can the utility truck be considered a separate\ntransport vehicle from the trailer that it is connected and allow one exception to be used on\nthe utility truck and the other exception to be used for the trailer?\nIssue 2\nA transport vehicle contains both spillable\nbatteries under 49 CFR 173.159 (e) and lead\ntransported together using both exceptions?\nboth exceptions being used at the same time\nand non-spillable batteries. Can lead acid\nacid batteries under 49 CFR 173.159a both be\nPer DOT Interpretation 06-0062, the usage of\nappears to be accurate.\nThe questions were sent earlier, but no response was received. Therefore, resubmitting with\ncell phone telephone number.\nName: Chuck Denny\nOrganization: Duke Energy Corporation\nEmail: Chuck.Denny@duke-energy.com\nAddress: 526 South Church Street, EC13K\nCity: Charlotte\nZip Code: 28202\nPhone: 704-564-1504\nCountry: USA\n1\n\n<<<PAGE 13>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety Administration\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nJune 24, 2009\nTo: Fireworks shippers, distributors and carriers and related industry associations.\nThe Pipeline and Hazardous Materials Safety Administration (PHMSA), an agency ofthe\nU.S. Department of Transportation, wants to assure that every American has a safe and\nenjoyable Fourth of July.\nPHMSA recently completed several investigations involving the transportation and\nstorage of consumer fireworks by non-profit organizations. These investigations\nidentified widespread problems related to these activities, including a lack of\nunderstanding of applicable Federal regulatory requirements covering hazard\ncommunication, training, and driver qualifications. PHMSA is concerned that many non-\nprofit organizations who offer, accept, transport, and store fireworks do not understand\nthe hazards posed by fireworks during transportation.\nSome of the common violations and safety problems noted during our investigations\ninclude:\n• No PHMSA Hazardous Materials Registration\n• No Hazardous Materials Placards\n• Limited or no Hazardous Materials Training, and\n• No Commercial Drivers License (CDL) w/ Hazardous Materials Endorsement\nIn an effort to educate the non-profit organizations and increase their hazardous materials\nsafety awareness, this letter summarizes the regulatory requirements that apply to\nconsumer fireworks shipments and provides a point of contact to obtain additional\ninformation.\nBackground\nRequirements governing the transportation of hazardous materials in commerce,\nincluding consumer fireworks, are contained in the Hazardous Materials Regulations\n(HMR; 49 Code of Federal Regulations Parts 171-180). The HMR apply to the\ncommercial transportation of consumer fireworks, including transportation conducted by\nnon-profit organizations in support of fund-raising activities.\nThe HMR specify appropriate packaging and handling requirements for hazardous\nmaterials, and require a shipper to communicate the material's hazards through use of\nshipping papers, package marking and labeling, and vehicle placarding. The HMR also\n\n<<<PAGE 14>>>\n\nrequire shippers to provide emergency response information applicable to the specific\nhazard or hazards of the material being transported. Finally, the HMR mandate training\nrequirements for persons who prepare hazardous materials for shipment or who transport\nhazardous materials in commerce. The HMR also include operational requirements\napplicable to each mode of transportation.\nQuestions and Answers\nQl. What do non-profit organizations need to know about the transport of\nconsumer fireworks?\nAl. There are a number of Federal regulations that apply to the safe transportation of\nhazardous materials. If the regulatory requirements are not met then enforcement actions\nmay be taken, to include significant civil penalties, criminal fines and imprisonment\nwhere applicable.\nQ2. A2. Are consumer fireworks considered a hazardous material, and if so, do they\nrequire special handling in transportation?\nYes, the U.S. Department ofTransportation identifies fireworks as a Division\n1.4G explosive and regulates their safe transportation in commerce.\nQ3. What are the regulatory requirements applicable to consumer fireworks\nshipments?\nA3. In addition to the general and highway specific requirements of the HMR, all\nshipments of Division 1.4G fireworks by highway transport vehicle, including shipments\nfrom sales outlets and retail stands to storage areas or return, must conform to the\nfollowing:\n• The shipment must be accompanied by a shipping paper that describes the\nexplosives, including the quantity being transported (see 49 CFR Part 172,\nSubpart C).\n• The shipping paper must include a telephone number of a person who can provide\ncomprehensive emergency response information about the fireworks; the\ntelephone number must be monitored at all times the shipment is in transportation\n(see 49 CFR Part 172, Subpart G).\n• The shipment must be accompanied by written emergency response information\nthat describes the risks associated with the shipment and immediate precautions to\nbe taken in the event of an accident (see 49 CFR Part 172, Subpart G).\n• The packages containing the fireworks must be properly loaded, blocked and\nbraced to restrict movement in the transport vehicle and protected against ignition\nsources (see 49 CFR Part 177, Subpart B).\n• All persons involved with the transportation of the shipment, including persons\nwho load and unload the transport vehicle and persons who operate the transport\nvehicle, must be trained. The training must cover the components specified in the\nConsumer Fireworks Advisory Letter 2\n\n<<<PAGE 15>>>\n\nregulations (i.e., general awareness/familiarization, function specific, safety and\nsecurity training) and must be documented (see 49 CFR Part 172, Subpart H).\nQ4. Are there additional requirements for transporting large quantities of\nconsumer fireworks?\nA4. Yes, for any shipment ofDivision 1.4G fireworks that exceed 1,001lbs gross\nweight on a transport vehicle the following additional requirements apply:\n• The transport vehicle must be operated by a driver with a commercial driver's\nlicense with a hazardous materials endorsement (see 49 CFR 177.804 and 49 CFR\nPart 383).\n• The transport vehicle must be placarded on each side and each end with\n· EXPLOSIVES 1.4 placards (see 49 CFR Part 172, Subpart F).\n• The shipper and the carrier must both develop and implement security plans that\ninclude an assessment of possible transportation risks ofthe fireworks and\nappropriate measures to address the risks. At a minimum, the security plan must\naddress personnel security, en route security, and unauthorized access (see 49\nCFR Part 172, Subpart I).\n• The transporter/ carrier must apply and hold a current hazardous materials\nregistration certificate with, and issued by, PHMSA (see 49 CFR Part 107,\nSubpart G).\nQS. What are the potential federal consequences ifl don't follow the\nrequirements for transporting consumer fireworks?\nA5. Persons found to be in violation of the HMR may be subject to significant civil\npenalties, criminal fines and imprisonment. The maximum penalties depend on several\nfactors, including the nature and circumstances, extent and gravity, and severity of the\nconsequences of the violation, but can range up to $100,000 per violation for a civil\npenalty and $500,000 and ten years in prison for a criminal penalty.\nQ6. Where can I get more information about the safe transportation of consumer\nfireworks?\nA6. The HMR, along with more detailed information and guidance on the regulatory\nrequirements governing the shipment of fireworks, are available at DOT's Hazmat Safety\nweb site: http://www.phmsa.dot.gov/hazmat. In addition, you can obtain answers to\nspecific questions from the Hazardous Materials Information Center at 1-800-467-4922\n(in Washington, DC, call202-366-4488).\nR. Ryan Posten\nDirector, Office ofHazardous Materials Enforcement\nConsumer Fireworks Advisory Letter 3","truncated":false,"body_characters":32473}