{"operation":"document","citation":"16-0193","title":"Scopelitis, Garvin, Light, Hanson, Feary, P.C. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2017-06-19","effective_on":null,"summary":"16-0193 response to Scopelitis, Garvin, Light, Hanson, Feary, P.C. concerning 171.8, 172.101, 173.150.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-16-0193.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-16-0193.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-16-0193","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2017/160193.pdf","body":"<<<PAGE 1>>>\n\nu. Imomy w. wiseman\nManaging Partner\nScopelitis, Garvin, Light, Hanson & Feary, P.C.\n10 West Market Street, Suite 1400\nIndianapolis, IN 46204\nReference No. 16-0193\nDear Mr. Wiseman:\nThis letter is in response to your November 17, 2016, e-mail requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to exceptions for\ntransporting alcoholic beverages. Specifically, you ask several questions about alcoholic\nbeverages that comply with § 173.150(d) and whether they must also comply with § 173.150(g)\nto be excepted from the HMR.\nYou provided the following information:\nThe Pipeline and Hazardous Materials Safety Administration (PHMSA) added\n§ 173.150(g) to the HMR in 2014 to incorporațe special permits that were originally\nissued to provide relief from the requirements in § 173.150(d).\n• Both § 173.150(d) and (g) appear to provide exceptions for transporting alcoholic\nbeverages under different conditions, making it unclear if an alcoholic beverage that\ncomplies with § 173.150(d) must also comply with § 173.150(g).\n• In a letter of interpretation issued under Reference No. 16-0094 (Sept. 15, 2016),\nPHMSA stated § 173.150(d)(1) does not require additional hazardous materials\ncommunication when a package meets one of the exceptions in that paragraph.\nWe have paraphrased and answered your questions as follows:\nQ1. You ask for confirmation of your understanding that the three conditions set forth in\n§ 173.150(d)(1) are disjunctive, such that the satisfaction of only one of the conditions\nentitles a person to a complete exception from the HMR. For example, a shipment of\nalcoholic beverages that exceed 24 percent alcohol by volume (ABV) but are contained\nin an inner packaging of 5 L (1.3 gallons) or less would be eligible for the exception.\nAl.\nYour understanding is correct. When alcoholic beverages, as defined in 27 CFR 4.10\n(wine) and 27 CFR 5.11 (distilled spirits), are transported by motor vehicle, vessel, or\nrail, these materials are not subject to the requirements of the HMR if they meet any one\n\n<<<PAGE 2>>>\n\nquantity limitations set forth in § 173.150(g) in order to be excepted.\nA2.\nA package of alcoholic beverages, that is wine or distilled spirits as defined in 27 CFR\n4.10 and 5.11, respectively, that complies with 49 CFR 173.150(d)(1) is excepted from\nthe HMR and is not required to comply with § 173.150(g).\nQ3.\nYou ask how § 173.150(d) and (g) are supposed to be reconciled concerning alcoholic\nbeverages.\nA3.\nThe exceptions for alcoholic beverages in § 173.150(d) and those for limited quantities of\nretail products that contain ethyl alcohol in § 173.150(g) are stand-alone provisions\nmeant to be applied separately from one another. The provisions for § 173.150(d) are\ndiscussed earlier in Answer Al. Section 173.150(g) applies to limited quantities that are\ndefined by § 171.8 as the maximum amount of a hazardous material for which there is a\nspecific labeling or packaging exception.\nQ4.\nYou ask if the term \"alcoholic beverage\" in § 173.150(d) encompasses only wine and\ndistilled spirits, as defined in 27 CFR 4.10 and 5.11, or if it also includes malt beverages\nsuch as beer. For example, would a shipment of beer containing only 4 percent ABV\nqualify for the exception found in § 173.150(d)(1)(i)? If not, could that same shipment of\nbeer qualify for the exception found in § 173.150(g), assuming the quantity limitations\nare met?\nA4. \"Alcoholic beverage\" as it is used in § 173.150(d)(1) and (d)(2) introductory paragraphs\nonly encompasses wine as defined in 27 CFR 4.10 and distilled spirits as defined in\n27 CFR 5.11. PHMSA restricts this exception to wine and distilled spirits and certain\npackaging and modal criteria because the Department of Treasury's Alcohol and Tobacco\nTax and Trade Bureau controls for these products make it unnecessary from a\ntransportation safety standpoint to subject them to the HMR (see Docket No. HM-102\n(40 FR 22263; May 22, 1975)). Additionally, the Hazardous Materials Table (HMT;\n§ 172.101 Table) lists \"Alcoholic beverages\" as United Nations (UN) identification\nnumber \"UN3065.\" UN3065 is defined by the UN Recommendations on the Transport\nof Dangerous Goods Dangerous Goods List as alcoholic beverages with more than 70\n2\n\n<<<PAGE 3>>>\n\nsincerely,\nTAken Foste\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 4>>>\n\nHi Shante/Alice,\nPlease submit this as a letter of interpretation. Please let me know if you have any questions.\nThanks,\nJordan\nFrom: twiseman scopelitis.com\nSent: Thursday, November 17, 2016 7:47 AM\nTo: INFOCNTR (PHMSA)\nSubject: Request for Guidance\nPlease find the attached letter requesting guidance concerning the proper interpretation of 49 C.F.R.\n173.150. -Tim\nTimothy W. Wiseman\nScopelitis, Garvin, Light, Hanson & Feary, P.C.\nPartner\nIndianapolis, IN 46204\n10 West Market Street, Suite 1400\nWEBSITE BIO VCARD E-MAIL I\n# 317-492-9221 (direct)\nSCOPELITIS\nLET 317-637-1777 (office)\nGARVIN LIGHT HANSON & FEARY\n6 317-687-2414 (fax)\n- twiseman@scopelitis.com\nprohibited from disseminating. using, or copying the contents and should notify the sender immediately that you received this message in error. The signature(s)\nCONFIDENTIALITY NOTICE: This message is privileged and confidential for the addressee(s) named above. If you are not the intended recipient, you are\nwithin this email does not constitute any binding agreement.\n1\n\n<<<PAGE 5>>>\n\nNovember 17, 2016\nVIA E-Mail (infocntr@dot.gov)\nU.S. DOT\nPHMSA Standards and Rulemaking Division\nAttn: PHH-10\nEast Building\n1200 New Jersey Avenue, SE\nWashington, DC 20590-0001\nRe:\nRequest for Official Interpretation\nDear Sir/ Madam:\nThis question concerns the interplay between two exceptions for Class 3\n(flammable and combustible liquids) found in 49 C.F.R. § 173.150. Specifically,\nsubsections (d) and (g) of the regulation both appear to exempt the transportation\nof alcoholic beverages under certain conditions. It is not clear, however, whether\na shipment that satisfies the conditions of subsection (d) must also satisfy the\nconditions of subsection (g) in order to be completely exempt from the Hazardous\nMaterials Regulations (\"HMRs\"). Accordingly, we respectfully request that\nPHMSA provide clarification on the issues addressed in greater detail below.\n49 C.F.R. § 173.150 provides, in pertinent part:\n(d) Alcoholic beverages.\n(1) An alcoholic beverage (wine and distilled spirits as defined in 27 CFR\n4.10 and 5.11), when transported via motor vehicle, vessel, or rail, is not\nsubject to the requirements of this subchapter if the alcoholic beverage:\n(i) Contains 24 percent or less alcohol by volume;\nIndianapolis = Chicago • Washington, D.C. • Los Angeles • Chattanooga\nDetroit • Spokane • Dallas/Fort Worth • Mikvaukee • Philadelphia/Mt. Ephraim • Tulsa\nSERVICES OUTSIDE CALIFORNIA AND MICHIGAN PROVIDED BY SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, PROFESSIONAL CORPORATION\nSERVICES IN MICHIGAN PROVIDED BY SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, PROFESSIONAL LIMITED LIABILITY COMPANY\nSERVICES IN CALIFORNIA PROVIDED BY SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, LIMITED LIABILITY PARTNERSHIP\n\n<<<PAGE 6>>>\n\n***\n(g) Limited quantities of retail products containing ethyl alcohol.\n(1) Beverages, food, cosmetics and medicines, medical screening solutions,\nand concentrates sold as retail products containing ethyl alcohol classed\nas a flammable liquid or flammable solid containing not more than 70%\nethyl alcohol by volume for liquids, by weight for solids are excepted from\nthe HMR provided that:\n(i) For non-glass inner packagings:\n(A) The volume does not exceed 16 fluid ounces in capacity for\nliquids; or\n(B) For volumes greater than 16 fluid ounces but not exceeding 1\ngallon the company name and the words \"Contains Ethyl Alcohol\"\nare marked on the package;\n(C) Solids containing ethyl alcohol may be packaged in non-glass\ninner packagings not exceeding 1 pounds capacity;\n(D) For weight greater than one pound up to 8 pounds the company\nname and the words \"Contains Ethyl Alcohol\" are marked on the\npackage.\n(ii) For glass inner packagings:\n(A) The volume does not exceed 8 fluid ounces in capacity; or\n(B) For volumes greater than 8 fluid ounces to 16 fluid ounces the\ncompany name and the words \"Contains Ethyl Alcohol\" are marked\non the package;\n(C) Solids containing ethyl alcohol may be packaged in glass inner\npackagings not exceeding ½ pound;\n(D) For weight greater than ½ pound up to 1 pound the company\nname and the words \"Contains Ethyl Alcohol\" are marked on the\npackage.\n(iii) The net liquid contents of all inner packagings in any single outer\npackaging may not exceed 192 fluid ounces. The net solid contents of\nall inner packagings in any single outer packaging may not exceed 32\npounds. The gross weight of any single outer package shipped may not\nexceed 65 pounds; Inner packagings must secured and cushioned\nwithin the outer package to prevent breakage, leakage, and movement.\nSCOPELITIS\nGARVIN LIGHT HANSON & FEARY\n\n<<<PAGE 7>>>\n\nIn our view, the addition of subsection (g) creates a bit of ambiguity as to the\napplicability of subsection (d). The confusion lies in the fact that both provisions\nappear to offer exceptions for the transportation of alcoholic beverages! but do\nso under starkly different conditions. Thus, it is not clear whether a shipment\nthat meets the conditions of subsection (d) must also meet the conditions of\nsubsection (g) in order to be exempt from the HMRs.\nBy way of example, a shipment of wine containing 24 percent or less alcohol by\nvolume seemingly qualifies for a complete exception from the HMRs under\nSection 173.150(d)(1)(i), regardless of the quantity at issue. However, the addition\nof subsection (g) to the regulation makes it appear as if that same shipment of\nwine must also meet the quantity limitations spelled out in subsection (g) in\norder to be exempt.\nWe assume that was not PHMSA's intention when it added subsection (g).\nIndeed, in a recent interpretation, PHMSA was asked whether \"alcohol beverages\nmeeting the exception in 173.150(d)(1) require additional hazardous materials\ncommunication.\" See PHMSA Interpretation No. 16-0094 (Sept. 15, 2016).\nPHMSA responded that \"the answer is no\" because \"when you meet one of the\nthree exceptions listed in 173.150(d)(1), none of the other provisions of the HMR\napply for transportation by rail, highway, or vessel.\" Nevertheless, out of an\nabundance of caution, we respectfully request guidance on the following\nquestions:\n1.\nPlease confirm that the three conditions set forth in 49 C.F.R. S\n173.150(d)(1) are disjunctive, such that the satisfaction of only one of the\nconditions entitles a person to a complete exception from the HMRs. For\nexample, a shipment of alcoholic beverages that exceed 24 percent alcohol by\nvolume but contained in an inner packaging of 5 L (1.3 gallons) or less would be\neligible for the exception.\nIs a shipment of alcoholic beverages that satisfies any of the\nconditions set forth in 49 C.F.R. § 173.150(d)(1) completely exempt from the\n1 Subsection (d) applies specifically to \"alcoholic beverages,\" whereas subsection (g) applies to,\namong other things, \"beverages\" containing ethyl alcohol. It is not clear from the regulation\nwhether there is a distinction between \"alcoholic beverages\" and \"beverages containing ethyl\nalcohol,\" but we assume there is not.\nESCOPELITIS\nGARVIN LIGHT HANSON & FEARY\n\n<<<PAGE 8>>>\n\nDoes the term \"alcoholic beverage\" in 49 C.F.R. § 173.150(d)\nencompass only wine and distilled spirits as defined in 27 C.F.R. S8 4.10 and\n5.11, or does it also include malt beverages such as beer? For example, would a\nshipment of beer containing only 4% alcohol by volume qualify for the exception\nfound in 49 C.F.R. § 173.150(d)(1)(i)? If not, could that same shipment of beer\nqualify for the exception found in subsection (g), assuming the quantity\nlimitations are met?\nWe appreciate your consideration of these questions. If you need any additional\ninformation, please contact me.\nVery truly yours,\n/ s/ Timothy W. Wiseman\n4813-0395-2188, v. 1\nESCOPELITIS\nGARVIN LIGHT HANSON & FEARY","truncated":false,"body_characters":12146}