Texas Department of Public Safety – CVE — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New jersey Avenue, SE Washington, D.C. 20590 JUN 0 5 2013 Sergeant Patrick Zatopek Texas Highway Patrol Commercial Vehicle Enforcement Texas Department of Public Safety- CVE 5505 Ave. N Rosenberg, Texas 77471 Ref. No.: 13-0079 Dear Mr. Zatopek: This is in response to your April 03, 2013 e-mail requesting clarification of the requirements in the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask if§ 177.834(c) which prohibits smoking on or about any motor vehicle while loading or unloading any Class 1 (explosive), Class 3 (flammable liquid), Class 4 (flammable solid), Class 5 (oxidizing), or Division 2.1 (flammable gas) materials applies to the use of electronic cigarettes otherwise known as e-cigarettes. The answer to your question is no. The requirement prohibiting smoking during loading and unloading ofthe types ofmaterials listed in§ 177.834(c) is intended to address lit tobacco products. As e-cigarettes operate on battery power, and without the application of an open flame, the use of these products do not fall under the scope of prohibited activities under § 177.834(c). I hope this information is helpful. If you have further questions, please do not hesitate to contact this office. Ul?d· . Delmer Billings ~ Senior Regulatory Advisor Standards and Rulemaking Division --- -------- ~-~~---- --~-- ---~-----------·#

Page 2Drakeford, Carol n PHMSA) From: Sent: To: Subject: Billings, Delmer (PHMSA) Thursday, April 11, 2013 9:02AM Drakeford, Carolyn (PHMSA) FW: Electronic Cigarettes Carolyn Please log for a memo response to Paul. Have specialist see me. Thanks, Del From: Bomgardner, Paul (FMCSA) Sent: Wednesday, April 03, 2013 2:27 PM To: Patrick.Zatopek@dps.texas.gov Cc: Billings, Delmer (PHMSA) Subject: Electronic Cigarettes Request: I am requesting clarification and/or interpretation regarding 49 CFR § 397.13 Smoking. This referenced section states: "No person may smoke or carry a lighted cigarette, cigar, or pipe on or within 25 feet of- ( a) A motor vehicle which contains Class 1 materials, Class 5 materials, or flammable materials classified as Division 2.1, Class 3, Divisions 4.1 and 4.2; or (b) An empty tank motor vehicle which has been used to transport Class 3, flammable materials, or Division 2.1 flammable gases, which when so used, was required to be marked or placarded in accordance with the rules in §177.823 of this title." My question is whether this section relates to an electronic cigarette otherwise known as an e-cigarette? My knowledge of e-cigarettes is that they use lithium batteries to power the device that converts liquid nicotine into a mist, or vapor, that the user inhales. There's no fire, no ash and no smoky smell. In my opinion, the word "lighted" in the above referenced section excepts the e-cigarettes from this regulation. I request your clarification or interpretation on this matter in order to promote uniform enforcement practices. I will also contact the Pipeline and Hazardous Materials Administration (PHMSA) to make this same request as it relates to 49 CFR §177.834(c) on smoking while loading or unloading. Your consideration and clarification on this request is appreciated. Thank you, Patrick B. Zatopek, Sergeant Texas Highway Patrol Commercial Vehicle Enforcement - Rosenberg Response: Sgt. Zatopek: The question on electronic cigarettes came up in January 2012. At that time, I conferred with Delmer Billings at PHMSA. We agreed that, because of the way electronic cigarettes operate (a small heating coil that produces steam), it 1#

Page 3does not meet the same level of heat as a burning cigarette. Therefore, electronic cigarettes are not prohibited under 397.13 or 177.823. I am cc'ing Mr. Billings, in case he wants to add anything. Regards, rf!J5dai @ifcbJJ~R!ne~t Chief· Hazardous Materials Division U.S. Department ofTransportation Federal Motor Carrier Safety Administration MC-ECH 1200 New Jersey Avenue, SE ·West Building W63-313 Washington, DC 20590 'l'elephoue: 202-493-0027 2#