{"operation":"document","citation":"14-0064","title":"NitroxFox LLC — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2015-01-05","effective_on":null,"summary":"14-0064 response to NitroxFox LLC concerning 171.1, 180.3.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-14-0064.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-14-0064.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-14-0064","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2015/140064.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nPipeline and Hazardous\nAdministration\nMaterials Safety\nJAN 0 5 2015\nMr. John Fox\nNitroxFox LLC\nPO Box 32091\nSarasota, FL 34239\nRef. No.: 14-0064\nDear Mr. Fox:\nThis is in response to your emails dated March 29, 2014, requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) relating to the applicability\nof the HMR to the filling of SCUBA cylinders at a self-service filling station. You propose\na self-service filling station to enable your customers to fill their own SCUBA cylinders any\ntime of day, and ask if such an arrangement would be in compliance with the requirements\nof the HMR.\nSection 171.1(b) and (c) provides that requirements of the HMR apply to each person who\noffers a hazardous material for transportation in commerce and the transportation of a\nhazardous material in commerce. The transportation of a hazardous material by a private\nindividual for non-commercial personal use is not considered transportation in commerce.\nTherefore the requirements of the HMR are not applicable to fillers (offerors) or private\nindividuals for the use, recharging, or transportation of SCUBA cylinders by private\nindividuals for personal use.\nHowever, if a person were to fill a cylinder at the self-serve facility that is intended to be\nused in conjunction with a business, both the facility and the business would be subject to\nthe HMR. In this situation the self-serve facility would have to have a mechanism in place\nto ensure compliance with all applicable requirements of the HMR.\nFurther, in accordance with § 180.3(a), a cylinder marked to certify that it conforms to the\nrequirements of the HMR must be maintained in accordance with applicable specification\nrequirements whether or not it is in transportation in commerce at any particular time. Thus,\na DOT specification SCUBA cylinder that is marked to indicate conformance with\napplicable DOT requirements must be retested and otherwise maintained in accordance with\nthe HMR whether or not it is being used to transport hazardous materials in commerce.\n\n<<<PAGE 2>>>\n\nThe self-service filling station would have to provide a mechanism for ensuring a cylinder is\nin compliance with § 180.3(a). The filling of a cylinder by an untrained person may result in\nthe cylinder being filled beyond its marked service pressure or being filled after the cylinder\nbecomes due for requalification and would violate the HMR.\nEven though the requirements of the HMR do not apply to the transportation of hazardous\nmaterials by private individuals for their personal use, it is reasonable to assume that some\npatrons would have a commercial purpose, thereby triggering the applicability of the HMR.\nWhen a cylinder is subject to the HMR, requirements for filling, testing, shipping papers,\nmarkings, labels, and other areas may apply. Additionally, even when the HMR does not\napply Occupational Safety and Health Administration (OSHA) and state and local\nrequirements may apply.\nFor these reasons, PHMSA counsels against the proposed self-service filling station.\nYou also ask if these cylinders may be filled when they are on a vehicle. The HMR does not\naddress whether a cylinder can be filled while it is on a vehicle or if it must be removed\nfrom the vehicle for filling.\nI trust this information is helpful. If you have further questions, please do not hesitate to\ncontact this office.\nSincerely,\nShane C. Kelley\nActing International Standards Coordinator\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nBabich\n3173.301\n-Drakeford, Carolyn (PHIMSA)\nSent:\nFrom:\nBenedict, Robert (PHMSA)\nTo:\nSaturday, March 29, 2014 4:47 PM\nCylinders\nSubject:\nFw: Self Serve Gas Filling station\nDrakeford, Carolyn (PHMSA)\n14-0064\nPlease assign as a request for interp.\nFrom: John Fox [mailto: nitroxfox1@comcast.net]\nSent: Saturday, March 29, 2014 02:28 PM\nTo: Benedict, Robert (PHMSA)\nSubject: Self Serve Gas Filling station\nRob,\nI would like to set up a self-serve gas blending station for my customers. We fill gas bottles for scuba diving. They range\nin working pressures from around 1800 psi -45oo psi. They will be both steel and aluminum cylinders. Can I do this and\nabide by current DOT regulations? I want my customers to be able to fill their own cylinders at their leisure at any time of\nday as I am not open 24 hours per day. They will contain air, nitrox up to 100% 02 content and mixtures with helium\ndepending on the application and dive profile. Are there training requirements for anyone who fills a cylinder or can I set\nup a pay per use station and let anyone fill cylinders? We will not be auditing the fills so it will be by an honor system as\nto how full(psi) and what the percentage(02,HE) the mixtures are. If I do this, what must I do to comply with the current\nrequirements? Do the cylinders and valves need to meet a certain standard of cleanliness and inspection? How many\nscuba cylinders can an individual transport and not have to abide by DOT regulations, if any? This will be a fill station\nopen to the general public if allowed.\nThanks,\nJohn Fox\nNitroxFox LLC\nPO Box 32091\nSarasota, FI, 34239\n\n<<<PAGE 4>>>\n\nDrakeford, Carolyn (PHMSA)\nFrom:\nSent:\nBenedict, Robert (PHMSA)\nTo:\nSaturday, March 29, 2014 4:48 PM\nSubject:\nDrakeford, Carolyn (PHMSA)\nFw: Self Serve Gas Filling station\nThis goes along with the other email.\nFrom: John Fox _mailto: nitroxfox1@comcast.net\nSent: Saturday, March 29, 2014 02:42 PM\nTo: Benedict, Robert (PHMSA)\nSubject: FW: Self Serve Gas Filling station\nRob,\nSorry,\nOne more question. Can these cylinders be filled in the vehicles or not? I know some customers have many cylinders and\nit would be inconvenient for them to remove all of them from their vehicles at each fill. I may be able to set up a spool so!\ncan run I line to the vehicles and make it easier to fill the cylinders. Aside from training requirements, are there other\nrequirements to abide by DOT regulations for fillers and blenders in my particular situation?\nThanks again,\nJohn\nSent: Saturday, March 29, 2014 2:28 PM\nFrom: John Fox [mailto:nitroxfox1@comcast.net]\nTo: 'robert.benedict@dot.gov'\nSubject: Self Serve Gas Filling station\nRob,\nI would like to set up a self-serve gas blending station for my customers. We fill gas bottles for scuba diving. They range\nin working pressures from around 1800 psi -45oo psi. They will be both steel and aluminum cylinders. Can I do this and\nabide by current DOT regulations? I want my customers to be able to fill their own cylinders at their leisure at any time of\nday as l am not open 24 hours per day. They will contain air, nitrox up to 100% 02 content and mixtures with helium\ndepending on the application and dive profile. Are there training requirements for anyone who fills a cylinder or can I set\nup a pay per use station and let anyone fill cylinders? We will not be auditing the fills so it will be by an honor system as\nto how full(psi) and what the percentage(02,HE) the mixtures are. If I do this, what must I do to comply with the current\nrequirements? Do the cylinders and valves need to meet a certain standard of cleanliness and inspection? How many\nscuba cylinders can an individual transport and not have to abide by DOT regulations, if any? This will be a fill station\nopen to the general public if allowed.\nThanks,\nJohn Fox\nNitroxFox LLC\nPO Box 32091\nSarasota, FI, 34239\n1\n\n<<<PAGE 5>>>\n\nDrakeford, Carolyn (PHMSA)\nSent:\nFrom:\nBenedict, Robert (PHMSA)\nSubject:\nTo:\nSunday, March 30, 2014 2:53 PM\nFw: Self Serve Gas Filling station\nDrakeford, Carolyn (PHMSA)\nCarolyn include this with the other two emails.\nFrom: John Fox [mailto:nitroxfox1@comcast.net]\nSent: Sunday, March 30, 2014 02:48 PM\nSubject: RE: Self Serve Gas Filling station\nTo: Benedict, Robert (PHMSA)\nThis also begs another question. What does the DOT consider \"transportation in commerce\"? I would be engaged in the\nexchange of goods and services for a consideration, which could be defined as \"commerce\" by some, but what applies to\nthose customers who use the goods for work purposes and those that use and transport for recreation? Is there a\ndistinction if the goods are transported via road, rail, water, etc in the USA if we are engaged in commerce but the goods\nare used for work or pleasure? I often hear that the DOT has no jurisdiction because the goods are used\nrecreationally. What is the difference between recreational and commercial use? Are there limits dollar amounts,\nweight, vehicle, passengers...) for which one can transport solely for recreational purposes before they are obligated to\nabide by commercial standards?\nThanks,\nJohn\nFrom: robert.benedict@dot.gov [mailto: robert.benedict@dot.gov]\nTo: nitroxfox1@comcast.net\nSent: Saturday, March 29, 2014 4:47 PM\nSubject: Re: Self Serve Gas Filling station\nJohn,\nThis is a rather a detailed inquiry so l am going to process this as a formal request for interpretation. One of our\nregulations specialist will be assigned the inquiry, research your questions under our current requirements and we will\nissue a written interpretation answering your questions.\nThanks\nRob\nFrom: John Fox [mailto:nitroxfox1@comcast.net]\nSent: Saturday, March 29, 2014 02:28 PM\nTo: Benedict, Robert (PHMSA)\nSubject: Self Serve Gas Filling station\nRob,\nI would like to set up a self-serve gas blending station for my customers. We fill gas bottles for scuba diving. They range\nin working pressures from around 1800 psi -45oo psi. They will be both steel and aluminum cylinders. Can I do this and\nabide by current DOT regulations? I want my customers to be able to fill their own cylinders at their leisure at any time of\nday as I am not open 24 hours per day. They will contain air, nitrox up to 100% 02 content and mixtures with helium\ndepending on the application and dive profile. Are there training requirements for anyone who fills a cylinder or can I set\nup a pay per use station and let anyone fill cylinders? We will not be auditing the fills so it will be by an honor system as\n1\n\n<<<PAGE 6>>>\n\nto how full(psi) and what the percentage(02,HE) the mixtures are. If I do this, what must I do to comply with the current\nrequirements? Do the cylinders and valves need to meet a certain standard of cleanliness and inspection? How many\nscuba cylinders can an individual transport and not have to abide by DOT regulations, if any? This will be a fill station\nopen to the general public if allowed.\nThanks,\nJohn Fox\nNitroxFox LLC\nPO Box 32091\nSarasota, FI, 34239\n2","truncated":false,"body_characters":10535}