# Fowler Transportation Ltd. — Hazardous Materials Safety Interpretation

- **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:** Not available
- **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>>>

U.S. Department
of Transportation
Pipeline and Hazardous
Materials Safety
Administration
1200 New Jersey Avenue, SE
Washington, D.C. 20590
DEC 0 S 2013
Mr. Kevin Riley
DOT Compliance/HSE Director
Fowler Transportation Ltd.
PO Box 220
Marshall, TX 75671
Ref. No. 13-0150
Dear Mr. Riley:
This responds to your July 15, 2013 letter regarding the shipping paper requirements of the
Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Your questions are
paraphrased and answered as follows:
Ql. Does§ 172.200(b)(1) or (b)(2) except transportation ofplacardable amounts of
diesel fuel (NA1993) from the requirement to provide a shipping paper; or from the
requirement to provide a hazardous materials description on the shipping paper?
A 1. The answer is no. Section 172.200(b) does not except a placarded load of
diesel from the shipping paper requirements. Section 1 72.200(b) states that, unless
the material intended for shipment is a hazardous substance, hazardous waste, or
marine pollutant, a shipping paper is not required for any material identified by the
letter "A" or "W" in column 1 of the § 172.101 hazardous materials table (HMT)
except when transported by aircraft (air) or vessel (water), respectively. Diesel fuel
is neither identified by the letter "A" nor "W" in column 1 of the § 172.101 HMT
and therefore, this exception does not apply.
Q2. Is a tank mounted onto a skid equipped with a loading hitch, winched to a
flatbed trailer and secured by tie down devices considered a portable tank or a cargo
tank? The tank capacity exceeds 119 gallons. Also, as noted in a telephone
conversation with a member of my staff on July 25, the diesel fuel contained in the
tank is not loaded or unloaded from the tank while on the flatbed trailer.
A2. Based on your description and without further visual evidence, it is the opinion
of this Office that the tank you describe is a portable tank. The terms "Cargo tank"
and "Portable tank" are defined in§ 171.8 ofthe HMR. Paraphrasing the complete
definitions, a cargo tank is a bulk packaging that is permanently attached to or
forms part of a motor vehicle, or is not permanently attached but which by reason of
its size, construction or attachment to a motor vehicle is loaded or unloaded without
being removed from the vehicle; and a portable tank is a bulk packaging designed
to be loaded onto or temporarily attached to a transport vehicle and equipped with
skids, mountings, or accessories to facilitate handling by mechanical means. Thus, ·

<<<PAGE 2>>>

the tank is a portable tank, and subject to all requirements associated with the use of
portable tanks authorized for transportation of diesel fuel.
I hope this information is helpful. If you have further questions, please contact this office.
Sincerely,
Robert Benedict
Chief, Standards Development Branch
Standards and Rulemaking Division

<<<PAGE 3>>>

Mr. Charles E. Betts
Director, Standards and Rulemaking Division
U.S. DOT/PHMSA (PHH-10)
1200 New Jersey Avenue, SE East Building, 2nd Floor
Washington, DC 20590
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Mr. Betts, I hope this correspondence finds you well. I am writing your office
today, to request an interpretation of Title 49 Code of Federal Regulations Part 172,
Subpart C. Specifically, §172.200(b), the section addressing the applicability ofthe
description of hazardous materials on the shipping papers ..
First, let me give you a briefhistory, and explanation, ofthis company's
involvement with the shipping of hazardous materials. Fowler Transportation is a service
company, providing heavy haul services, mainly for the oil and gas industry. The only
hazardous material we transport is diesel fuel "NA1993" (aka, fuel oil). The diesel fuel is
stored and transported, in a portable tank, or cargo tank (depending on proper
description) that exceeds a capacity of 119 gallons, is mounted onto a skid, which is
equipped with a loading hitch. Our equipment is outfitted with a mechanical winch,
attached to the power unit, which is used to hook onto, (by means of a winch line) the
loading hitch on the tank skid. Once hooked, the tank is then winched onto a flatbed
trailer and secured by transport chains, or other tiedown devices, to the trailer in
accordance to §393.100 .
.§172.200 Applicability
(a) (b) Description of hazardous materials required. Except as otherwise
provided in this subpart, each person who offers a hazardous material
for transportation shall describe the hazardous material n the shipping
paper in the manner required by this subpart.
Thissubpart does not app~YJ.Q...:;tny material, c~~~:::r· :~'r:1"';' a
hazardous substance, hazardous waste or marine pollutant that is-
1. Identified by the letter "A" in column 1 of the §172.101 table .. .
2. Identifledbythe letter "W" in column 1 ofthe §172.101 table .. .
3. AnORM-D, ...
4. Category B infectious material. ..
Although Fowler Transportation does provide a description on the shipping paper
(weigh bill) in accordance to §172.201, I question the wording versus intent in the above
highlighted section. This came to my attention while designing an outline for instruction
on the hazardous materials guidelines in conformance with Part 177. It is my
understanding and belief, that shipping papers are required in our circumstance.
However, one could easily interpret the above highlighted section to exclude any
hazardous materials not specifically listed in §172.1 00 (b).

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Question 1.
Does .§172.1 OO(b) intend to exempt shipments of placardable amounts of diesel fuel
"NA1993" from the requirements of;
(a) providing shipping papers in accordance to § 172.201, or
(b) providing a description of the hazardous material in accordance to § 172.202?
§172.101 (Diesel Fuel)
Symbols I Proper Name I Hazard Class I I.D. # I PG I Label Codes I
D I Diesel Fuel I 3 I NA1993 I III I None I
I had the opportunity to sit down and discuss this with a local TXDPS Trooper
within my area, which we agreed that, the way the law reads, versus "what we believe"
the laws intent is, seems to differ.
(a) By stating "this sub-part" one could interpret that to mean (Sub-part C
-Shipping Papers) as a whole, "would not apply" unless the materials
being shipped were classified as, a hazardous substance, hazardous
waste or a marine pollutant identified in the hazmat table with the
letter(s) "A" or "W" in column 1. (which diesel does not)
Diesel Fuel, shown above, as it appears in the Hazmat table (§ 172.101) does not
match the classification of any material described in § 172.201 (b). Therefore would be
exempt from either the requirement of providing any shipping paper(s), or at the very
least be exempt from the requirement of providing a basic description of the hazardous
material being shipped on any shipping paper(s),
As stated above, I do not think that it is/was the intention of §172.1 OO(b) to
exclude "1993" or many other hazardous materials from the requirements set forth in
§ 172 sub-part C, and will continue to instruct Fowler's employees to adhere to the
requirements of shipping papers and to provide a basic description of the material(s) in
accordance to § 172.202. However, I believe it is in the best interest of the FMC SA to
clarify this particular section, as it is very ambiguous, and could be misconstrued,
possibly placing the general public and this nations first responders in harms way.
Secondly, I would like some clarification as to the proper legal name, of the
device (Container), used by drilling contractors to store diesel fuel while on location, as
well as transport that fuel from one location to another, when the contractor has
completed its task at the first well site.

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Under the rules for transporting a "portable tank", a driver would be required to
have a tanker endorsement in addition to his hazardous materials endorsement. "Portable
tanks" would also require additional markings on the tank itself by identifying the owner
or lessee on two opposing sides.
§171.8 Definitions;
Portable Tank; Means a bulk packaging (except for a cylinder having a water capacity
of 1 000 pounds or less) designed primarily to be loaded onto, or on, or temporarily
attached to a transport vehicle or ship and equipped with skids, mountings, or accessories
to facilitate handling of the tank by mechanical means. It does not include a cargo tank,
tank car, multi-unit tank or trailer carrying 3AX, 3AAX, or 3T cylinders.
Cargo Tank; Means a bulk packaging that;
(1) Is a tank intended primarily for the carriage ofliquids or gases and includes
appurtenances, reinforcements, fittings, and closures.
§178.320
Tank; Means a container, consisting of a shell and heads, that forms a pressure
Tight vessel having openings designed to accept pressure tight fittings or closures, but
excludes any appurtenances, reinforcements, fittings, or closures.
Question 2.
Is the container, described above (in the 2nd paragraph), considered by The
Department of Transportation, Federal Motor Carrier Safety Administration or PHMSA
to be a portable tank, or Cargo Tank?
I appreciate your attention and consideration in this matter. It is always Fowler
Transportation's intention to comply by the regulations set forth by the FMCSA, TXDPS,
or any other National, State or local agency.
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