{"operation":"document","citation":"18-0001","title":"Washington State Ferries — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2018-05-31","effective_on":null,"summary":"18-0001 response to Washington State Ferries concerning 171.1, 172.101, 173.171, 176.88, 176.90.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0001.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0001.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0001","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/58601/180001.pdf","body":"<<<PAGE 1>>>\n\nof Transportation\nU.S. Department\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nPipeline and Hazardous\nAdministration\nMaterials Safety\nMAY 3 1 2018\nWashington State Ferries\nAttn: Manny Perez, Fleet Safety Coordinator\n2901 3rd Avenue, Suite 500\nSeattle, WA 98121-3014\nReference No. 18-0001\nDear Mr. Perez:\nThis letter is in response to your December 21, 2017, email requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the transportation\nof smokeless gunpowder by ferry. You have a patron who rides your ferry to and from his home\ncarrying a 5-pound canister of smokeless gunpowder. You note that there are multiple entries in\n§ 172.101 of the Hazardous Materials Table (HMT) for smokeless powder, including:\n• UN0160, Powder, smokeless, 1.1C\n• UN0161, Powder, smokeless, 1.3C\n• UN0509, Powder, smokeless, 1.4C\n• NA3178, Smokeless powder for small arms (100 pounds or less), 4.1\nYou add that UN0160 and UN0161 have a vessel storage code of \"04\" and therefore are\nprohibited from carriage on passenger vessels.\nWe have paraphrased and answered your questions as follows:\nQ1: You ask if the HMR apply to a private individual transporting smokeless gunpowder by\nferry.\nAl: The answer is yes. As stated in § 171.1(c)(1), the HMR apply to the transportation in\ncommerce of hazardous materials by vessel (except, as delegated at 49 CFR 1.46(t)). The\ncarriage of a motor vehicle (including a personal motor vehicle) containing a hazardous\nmaterial on board a passenger ferry vessel is transportation in commerce and therefore is\nsubject to the HMR. In addition, § 176.88 of the HMR states, \"The requirements in this\nsubpart are applicable to transport vehicles containing hazardous materials being\ntransported on board ferry vessels and are in addition to any prescribed elsewhere in this\nsubchapter.\" Lastly, § 176.90 states that a private automobile which is carrying any\nClass 1 (explosive) material (except permitted fireworks or small arms ammunition) may\nnot be transported on a passenger-carrying ferry vessel unless the Class 1 (explosive)\nmaterial conforms to the packaging, labeling, marking, and certification requirements of\n\n<<<PAGE 2>>>\n\nthis subchapter. Therefore, as noted in your email, shipments of smokeless powder that\ncarry a vessel storage code of \"04\" would be prohibited on board vessels unless allowed\nby special permit.\nQ2: Taking into consideration the above information, you ask who is responsible for ensuring\nthe hazardous material being transported in a private vehicle is properly described,\nclassed, and authorized to be transported by vessel.\nA2: Under the HMR, the offeror is primarily responsible for properly classifying, packaging,\nmarking, and labeling a hazardous material for transportation in commerce.\nNevertheless, Washington State Ferries vessel captain is responsible for accepting\ntransport of the material, stowage and segregation.\nQ3: You ask if a hazardous material keeps its original hazard classification once it is sent to a\nretailer and no longer in a Department of Transportation (DOT) specification packaging.\nA3:\nThe answer is yes. The explosive would still retain the classification associated with its\noriginal approval and must be shipped in accordance with its original packaging\ninstructions. However, smokeless powder for small arms that has been originally\nclassified as a Division 1.3 or 1.4 hazardous material may be reclassed as a Division 4.1\nhazardous material, for domestic transportation by motor vehicle, rail car, vessel, or\ncargo-only aircraft, provided all the conditions of § 173.171 are met.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\ntern Poster\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nAndreues\n$173.171\nackaging General\nDodd, Alice (PHMSA)\n18-0001\nFrom:\nINFOCNTR (PHMSA)\nSent:\nWednesday, January 03, 2018 3:11 PM\nTo:\nHazmat Interps\nSubject:\nFW: Request for Interpretation\nHello all,\nPlease see the letter of interp request below.\nRegards,\n-Breanna\nFrom: Perez, Manny [mailto:PerezMa@wsdot.wa.gov]\nSent: Thursday, December 21, 2017 1:21 PM\nTo: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>\nSubject: Request for Interpretation\nDear Sirs:\nWe are requesting a formal interpretation on an issue that come to light regarding the transportation of smokeless\ngunpowder on board our vessels by a passenger in their private vehicle.\nBackground\nWashington State Ferries (WSF) is a division of the Washington State Department of Transportation (WSDOT) and\noperates passenger carrying vessels that are inspected and certificated by the United States Coast Guard. The vessels\noperate on various routes in Puget Sound from Point Defiance, WA, to Sydney, British Columbia (BC). With the\nexception of the Seattle to Bremerton run and the run from Anacortes to Sydney, BC, all of our transits can be\ncompleted in 45 minutes or less. The transit time on the Seattle to Bremerton run is approximately 55 to 60 minutes,\nand the Anacortes to Sydney, BC run takes about 2 hours to complete with a stop enroute at Friday Harbor, San Juan,\nIsland, WA, which averages about 1 hour and 15 minutes after departure from Anacortes. Anyone being transported on\none of our vessels in a vehicle (regardless of the type of vehicle in which they are riding), or as a walk-on passenger,\nmust provide consideration as a condition of carriage. This includes all federal, state, and local government agency\nvehicles. (\"Consideration\"\n, as defined in 46 United States Code (USC) 2101(5a) \"means an economic benefit,\ninducement, right, or profit including pecuniary payment accruing to an individual, person, or entity, but not including a\nvoluntary sharing of the actual expenses of the voyage, by monetary contribution or donation of fuel, food, beverage, or\nother supplies.\") Accordingly, anyone riding on a WSF vessel meets the definition for engaging in commerce.\nOne of the patrons who rides our vessels to and from his home, inquired about carrying a five-pound canister of\nsmokeless gunpowder on one of our vessels. The inquiry was general in nature and he did not indicate the hazard class\nof the gunpowder he was seeking to carry. There are several entries in the 49 CFR 172.101 Table for \"smokeless\npowder\", as noted below:\nHazardous Materials\nHazard Class or Division\nIdentification Number\nVessel Stowage/10A\nDescriptions and\nProper Shipping Names\nPowder, smokeless\n1.1C\nUN0160\n04\n1\n\n<<<PAGE 4>>>\n\nPowder, smokeless\n1.3C\nUN0161\n04\nPowder, smokeless\n1.4C\nUN0509\n02\nsmall arms (100\nSmokeless powder for\n4.1\nNA3178\npounds or less\nI note that those commodities with Column 10(A) stowage category \"A\" or \"02\" can be transported on a passenger\nvessel, but those with a stowage category of \"04\" are prohibited from carriage on passenger vessels.\nAs stated above, a patron has inquired as to whether they can transport a five-pound canister of smokeless gunpowder\non one of our vessels. The patron will most likely have purchased the canister from a retailer and then will be\ntransporting the gunpowder in his private vehicle on one of our vessels to his home. The retailer most likely will have\nreceived the gunpowder from a distributor, which most likely was shipped to them in DOT specification\npackaging. However, the retailer will open the DOT specification packaging and sell individual canisters to the\nconsumer. The individual canisters will be sold in one, four, or eight pound sizes.\nThe individual canisters are not required to be marked or labeled in accordance with the HMR indicating the hazard class\nof the material contained therein. Accordingly, when the patron drives their private vehicle onto one our vessels there\nis no way for WSF to determine the hazard class of the material; it could very well be a material that because of the\nhazard class of the material is prohibited from carriage on a passenger vessel.\nGiven the above, clarification is requested for the following:\n• Q1: In the scenario described above, does the HMR apply?\n• Q2: Taking into consideration the above information, who is responsible for ensuring the material (smokeless\ngunpowder) being transported in the patron's private vehicle is properly described and classed authorizing it to\nbe transported on one of our vessels?\n• Q3: Again taking into consideration the above information, once a hazardous material is classed and sent to a\nretailer and is no longer contained in a DOT specification packaging as in the instant case, does it keep the\noriginal classification? Additionally, since there is no requirement for classification labeling and marking of\nconsumer-sized canisters containing gunpowder, how is WSF to know the classification of the material being\noffered for transport on one of our vessels?\nThe situation described above presents a regulatory compliance problem for WSF. One possible solution would be to\nrequire smokeless gunpowder contained in consumer-sized canisters to be labeled and marked with the original\nhazardous material classification it had when it was shipped to a retailer.\nI look forward to your response. Please send the response to the name and address below:\nWashington State Ferries\nAttn: Manny Perez, Fleet Safety Coordinator\n2901 3rd Avenue, Suite 500\nSeattle, WA 98121-3014\nIf there are any questions, please contact me at the number below, or via e-mail.\nManny Perez\nFleet Safety Coordinator\nWashington State Ferries\ne-mail: perezma@wsdot.wa.gov\nPh: 206-515-3976\nFax: 206-515-3459\n2","truncated":false,"body_characters":9552}