{"operation":"document","citation":"13-0150","title":"Fowler Transportation Ltd. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2013-12-03","effective_on":null,"summary":"13-0150 response to Fowler Transportation Ltd. concerning 171.8, 172.200.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0150.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0150.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0150","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2013/130150.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\nDEC 0 S 2013\nMr. Kevin Riley\nDOT Compliance/HSE Director\nFowler Transportation Ltd.\nPO Box 220\nMarshall, TX 75671\nRef. No. 13-0150\nDear Mr. Riley:\nThis responds to your July 15, 2013 letter regarding the shipping paper requirements of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Your questions are\nparaphrased and answered as follows:\nQl. Does§ 172.200(b)(1) or (b)(2) except transportation ofplacardable amounts of\ndiesel fuel (NA1993) from the requirement to provide a shipping paper; or from the\nrequirement to provide a hazardous materials description on the shipping paper?\nA 1. The answer is no. Section 172.200(b) does not except a placarded load of\ndiesel from the shipping paper requirements. Section 1 72.200(b) states that, unless\nthe material intended for shipment is a hazardous substance, hazardous waste, or\nmarine pollutant, a shipping paper is not required for any material identified by the\nletter \"A\" or \"W\" in column 1 of the § 172.101 hazardous materials table (HMT)\nexcept when transported by aircraft (air) or vessel (water), respectively. Diesel fuel\nis neither identified by the letter \"A\" nor \"W\" in column 1 of the § 172.101 HMT\nand therefore, this exception does not apply.\nQ2. Is a tank mounted onto a skid equipped with a loading hitch, winched to a\nflatbed trailer and secured by tie down devices considered a portable tank or a cargo\ntank? The tank capacity exceeds 119 gallons. Also, as noted in a telephone\nconversation with a member of my staff on July 25, the diesel fuel contained in the\ntank is not loaded or unloaded from the tank while on the flatbed trailer.\nA2. Based on your description and without further visual evidence, it is the opinion\nof this Office that the tank you describe is a portable tank. The terms \"Cargo tank\"\nand \"Portable tank\" are defined in§ 171.8 ofthe HMR. Paraphrasing the complete\ndefinitions, a cargo tank is a bulk packaging that is permanently attached to or\nforms part of a motor vehicle, or is not permanently attached but which by reason of\nits size, construction or attachment to a motor vehicle is loaded or unloaded without\nbeing removed from the vehicle; and a portable tank is a bulk packaging designed\nto be loaded onto or temporarily attached to a transport vehicle and equipped with\nskids, mountings, or accessories to facilitate handling by mechanical means. Thus, ·\n\n<<<PAGE 2>>>\n\nthe tank is a portable tank, and subject to all requirements associated with the use of\nportable tanks authorized for transportation of diesel fuel.\nI hope this information is helpful. If you have further questions, please contact this office.\nSincerely,\nRobert Benedict\nChief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nMr. Charles E. Betts\nDirector, Standards and Rulemaking Division\nU.S. DOT/PHMSA (PHH-10)\n1200 New Jersey Avenue, SE East Building, 2nd Floor\nWashington, DC 20590\nDer k ~ndereJ!J\n~ l1 2 . :< o6 c.d)\n~ t7S3J.-0\n~1{2 . ./D}\ns.h; r f I ll!J Pop ev.s\nMr. Betts, I hope this correspondence finds you well. I am writing your office\ntoday, to request an interpretation of Title 49 Code of Federal Regulations Part 172,\nSubpart C. Specifically, §172.200(b), the section addressing the applicability ofthe\ndescription of hazardous materials on the shipping papers ..\nFirst, let me give you a briefhistory, and explanation, ofthis company's\ninvolvement with the shipping of hazardous materials. Fowler Transportation is a service\ncompany, providing heavy haul services, mainly for the oil and gas industry. The only\nhazardous material we transport is diesel fuel \"NA1993\" (aka, fuel oil). The diesel fuel is\nstored and transported, in a portable tank, or cargo tank (depending on proper\ndescription) that exceeds a capacity of 119 gallons, is mounted onto a skid, which is\nequipped with a loading hitch. Our equipment is outfitted with a mechanical winch,\nattached to the power unit, which is used to hook onto, (by means of a winch line) the\nloading hitch on the tank skid. Once hooked, the tank is then winched onto a flatbed\ntrailer and secured by transport chains, or other tiedown devices, to the trailer in\naccordance to §393.100 .\n.§172.200 Applicability\n(a) (b) Description of hazardous materials required. Except as otherwise\nprovided in this subpart, each person who offers a hazardous material\nfor transportation shall describe the hazardous material n the shipping\npaper in the manner required by this subpart.\nThissubpart does not app~YJ.Q...:;tny material, c~~~:::r· :~'r:1\"';' a\nhazardous substance, hazardous waste or marine pollutant that is-\n1. Identified by the letter \"A\" in column 1 of the §172.101 table .. .\n2. Identifledbythe letter \"W\" in column 1 ofthe §172.101 table .. .\n3. AnORM-D, ...\n4. Category B infectious material. ..\nAlthough Fowler Transportation does provide a description on the shipping paper\n(weigh bill) in accordance to §172.201, I question the wording versus intent in the above\nhighlighted section. This came to my attention while designing an outline for instruction\non the hazardous materials guidelines in conformance with Part 177. It is my\nunderstanding and belief, that shipping papers are required in our circumstance.\nHowever, one could easily interpret the above highlighted section to exclude any\nhazardous materials not specifically listed in §172.1 00 (b).\n\n<<<PAGE 4>>>\n\nQuestion 1.\nDoes .§172.1 OO(b) intend to exempt shipments of placardable amounts of diesel fuel\n\"NA1993\" from the requirements of;\n(a) providing shipping papers in accordance to § 172.201, or\n(b) providing a description of the hazardous material in accordance to § 172.202?\n§172.101 (Diesel Fuel)\nSymbols I Proper Name I Hazard Class I I.D. # I PG I Label Codes I\nD I Diesel Fuel I 3 I NA1993 I III I None I\nI had the opportunity to sit down and discuss this with a local TXDPS Trooper\nwithin my area, which we agreed that, the way the law reads, versus \"what we believe\"\nthe laws intent is, seems to differ.\n(a) By stating \"this sub-part\" one could interpret that to mean (Sub-part C\n-Shipping Papers) as a whole, \"would not apply\" unless the materials\nbeing shipped were classified as, a hazardous substance, hazardous\nwaste or a marine pollutant identified in the hazmat table with the\nletter(s) \"A\" or \"W\" in column 1. (which diesel does not)\nDiesel Fuel, shown above, as it appears in the Hazmat table (§ 172.101) does not\nmatch the classification of any material described in § 172.201 (b). Therefore would be\nexempt from either the requirement of providing any shipping paper(s), or at the very\nleast be exempt from the requirement of providing a basic description of the hazardous\nmaterial being shipped on any shipping paper(s),\nAs stated above, I do not think that it is/was the intention of §172.1 OO(b) to\nexclude \"1993\" or many other hazardous materials from the requirements set forth in\n§ 172 sub-part C, and will continue to instruct Fowler's employees to adhere to the\nrequirements of shipping papers and to provide a basic description of the material(s) in\naccordance to § 172.202. However, I believe it is in the best interest of the FMC SA to\nclarify this particular section, as it is very ambiguous, and could be misconstrued,\npossibly placing the general public and this nations first responders in harms way.\nSecondly, I would like some clarification as to the proper legal name, of the\ndevice (Container), used by drilling contractors to store diesel fuel while on location, as\nwell as transport that fuel from one location to another, when the contractor has\ncompleted its task at the first well site.\n\n<<<PAGE 5>>>\n\nUnder the rules for transporting a \"portable tank\", a driver would be required to\nhave a tanker endorsement in addition to his hazardous materials endorsement. \"Portable\ntanks\" would also require additional markings on the tank itself by identifying the owner\nor lessee on two opposing sides.\n§171.8 Definitions;\nPortable Tank; Means a bulk packaging (except for a cylinder having a water capacity\nof 1 000 pounds or less) designed primarily to be loaded onto, or on, or temporarily\nattached to a transport vehicle or ship and equipped with skids, mountings, or accessories\nto facilitate handling of the tank by mechanical means. It does not include a cargo tank,\ntank car, multi-unit tank or trailer carrying 3AX, 3AAX, or 3T cylinders.\nCargo Tank; Means a bulk packaging that;\n(1) Is a tank intended primarily for the carriage ofliquids or gases and includes\nappurtenances, reinforcements, fittings, and closures.\n§178.320\nTank; Means a container, consisting of a shell and heads, that forms a pressure\nTight vessel having openings designed to accept pressure tight fittings or closures, but\nexcludes any appurtenances, reinforcements, fittings, or closures.\nQuestion 2.\nIs the container, described above (in the 2nd paragraph), considered by The\nDepartment of Transportation, Federal Motor Carrier Safety Administration or PHMSA\nto be a portable tank, or Cargo Tank?\nI appreciate your attention and consideration in this matter. It is always Fowler\nTransportation's intention to comply by the regulations set forth by the FMCSA, TXDPS,\nor any other National, State or local agency.","truncated":false,"body_characters":9339}