{"operation":"document","citation":"18-0129","title":"AmeriGas Propane — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2019-05-01","effective_on":null,"summary":"18-0129 response to AmeriGas Propane concerning 172.401, 172.407.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0129.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0129.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0129","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/71341/180129.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nMAY O 1 2019\nChristopher Wagner\nDirector of Safety Compliance\nAmeriGas Propane\n460 N. Gulph Road\nKing of Prussia, PA 19406\nReference No. 18-0129\nDear Mr. Wagner:\nThis letter is in response to your October 11 , 2018, email requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to labeling\nexemptions provided by special permit. Specifically, you question a citation you were issued\ndespite being party to Special Permit (SP) 13544, which states that you are exempt from\n\"§ 172.401 in that each cylinder must be labeled.\"\nYou indicate that during a roadside inspection you were cited for a violation of§ 172.407\nbecause a flammable gas warning label on a cylinder had faded from red to yellow, thus no\nlonger meeting the hazard label specifications. You further state that your company routinely\nretrieves DOT 4BA240 cylinders, which you find in varying conditions (e.g., bearing DOT\nlabels that are worn, damaged, discolored or unreadable, or in conditions that prohibit you from\npermanently affixing a label), from propane exchange facilities. Therefore, you seek\nconfirmation of your understanding that SP 13544 allows you to transport cylinders that are\nlabeled improperly.\nThe answer is yes. It is the opinion of this Office that while not explicitly stated, the intent of SP\n13 544 is to authorize the transportation of cylinders that are not be properly marked or labeled\nwhen they are collected for the purpose of reconditioning, reuse, or disposal as part of a cylinder\ncollection operation like the one you described. Note that relief from marking and labeling\nrequirements similar to the exemptions provided in SP 13544 have been added to the HMR\nunder Special Provision N95 for certain shipments of\"UN1075, Liquefied petroleum gas\" and\n\"UN1978, Propane\" and may render party status to SP 13544 unnecessary.\nI hope this information is helpful. Please contact us if we can be of further assistance.\n\n<<<PAGE 2>>>\n\nCc~\nJ8: --01a 9\nDodd, Alice (PHMSA)\nFrom:\nSent:\nTo:\nSubject:\nAttachments: INFOCNTR (PHMSA) ·\nThursday, October 11, 2018 1:19 PM\nHazmat Interps\nFW: Special Permit 13544 Interpretation - Violation\nResponse to DataQ 2137735.docx; DOT-SP 13544 Authorization & Party Status.pdf\nDear Alice and lkeya,\nBelow is a request for a letter of interpretation with attached additional information.\nThanks,\nJonathon, HMIC\nFrom: Wagner, Christopher J. [mailto:Christopher.Wagner@amerigas.com]\nSent: Thursday, October 11, 2018 10:19 AM\nTo: PHMSA HM lnfoCenter <PHMSAHMlnfoCenter@dot.gov>\nSubject: Special Permit 13544 Interpretation - Violation\nGood morning,\nOne of our drivers was recently cited for violations of the Hazmat Regulations during a roadside inspection. DataQ\nrequests were entered for the two violations as it is believed that they were cited in error. Attached is the response\nfrom the citing agency where in one violation was removed, but the second was upheld.\nAmeriGas holds party status to DOT Special Permit 13544. Under the allowance of this permit, 4BA240 cylinders that\nare being returned to a facility for processing are not subject to the labeling requirements under 172.301 and 172.401 as\nlong as the vehicle is properly placarded denoting the hazard contained within the confines of the vehicle.\nAs propane containers that are retrieved from cylinder exchange locations are in varying states of cleanliness at the time\nof pick-up it is generally not possible to permanently affix a label of any type on the container until cleaned and or\nrepainted. This is the basis for the Special Permit. Additionally, existing labels can be worn, weathered, damaged, or\nmissing. In the case cited above, the officer identified one cylinder with a label where the color had faded. This likely\noccurred on a barbecue cylinder that had been stored outside in sunlight for any number of days months or years, prior\nto being returned to a Propane Retail Exchange Cage, for exchange with a new or refurbished cylinder with proper\nlabeling. As a point of note, our vehicles only carry propane containers and are only placarded with 1075, Class 2\nFlammable Gas placarding.\nIn the officer's note he states that a red label had faded to the point of appearing yellow which could be confused with\nOxygen, even though it was a flammable gas label on a propane cylinder, enclosed in a compartment of a vehicle that\nwas placarded properly as per the requirements. The officer additionally noted that another cylinder may have been\nlabeled with a diamond that he approximated (no formal measurement performed) was 1\" as opposed to the required\n1.25\". In both instances these cylinders were being returned to our facility for inspection and processing and we feel in\naccordance with the allowance under our special permit. No issues were identified with any outbound cylinders that\nwere on the truck as all were in compliance with the labeling requirements under 172.301 and 172.401 (by reference\n172.407, 172.417, & CGA C-7).\nI request that you review the above and attached and supply your interpretation of our operation so that I may resubmit\nthe DataQ for this violation in pursuit of dismissal.\n1\n\n<<<PAGE 3>>>\n\nPlease contact me with any questions of need for clarification. Thank you for your time and assistance.\nChristopher J Wagner\nDirector of Safety Compliance\nAmeriGas Propane\n460 N. Gulph Road\nKing of Prussia, PA 19406\n0: 610-337-7000; 1292\nC: 610-308-3822\n2\n\n<<<PAGE 4>>>\n\nCARRIER DATAQ #2137735 CHALLENGING VIOLATIONS\nWRITTEN UNDER 172.202(a}{l) AND 172.407\n1. VIOLATION WRITTEN :\n172.202(a)(l) No or improper Identification Number:\nShipping papers shows \"UN1075, Propane\", the correct UN# for Propane is UN1978. UN1075 is valid only for\n\"Petroleum gases, liquefied or Liquefied petroleum gas\"\nCARRIER CHALLENGE:\nThe challenge is based on 49CFR172.102 Special Provision 19\n172.2D2(ai(1) Open - Pending Officer\nC«rrre.Y.s I I rnproper shippng name\nExplanation: In Jf.:COrdance 'M1l1 Special Pro,;isioo 19 Propane is pe-mitted lo be lransponed dcrr.eF>tic.31 1)' under UN i075\nLabeled as Prop..ne\n1001i2D1B\n10:0B A.t.l I rnn, Special\nPrcwi:.bn.docx I apr,ication'vnd.ci:enmiliormals-\ncfficed0o::umentworrlprocessingml.doc;.ment 115889 I\nSpecial Provision 19. For domestic transportation only, the identification number \"UN1075\" may be used in\nplace of the identification number specified in column (4) of the§ 172.101 table. The identification number\nused must be consistent on package markings, shipping papers and emergency response information.\nRESPONSE:\nAccording to PHMSA and special provision 19, referred to under column 7 of the Hazardous Material Table for\nUN1978 Propane, 2.1, It is permissible for Propane to be marked as 1075 providing that the shipping papers,\npackaging markings and ERG are all displaying Propane and all the identification numbers display 1075. Which I\nbelieve they were.\nCONCLUSION:\nThis documented violation is in error, and I will amend and remove this violation from ASPEN Report\nWl2073003270 and re-transmit the report.\n2. VIOLATION WRITTEN:\n172.407 Label does not meet specifications:\n1 cylinder has faded labels, faded from red to yellow and another has an improper size CGA label. Both\ncylinders are return & have residual only.\nCARRIER CHALLENGE:\nThe challenge is based on their special permit 13544 that they are claiming permits them to transport improperly or\nunlabeled cylinders for processing and provided a copy of their Special Permit.\n172.407\nExplanation: AmeriGas is part/ to a special permit that allows the transpcrt of improperly or unlabeled cylinders back to our\nfacilities for processing. This pennit Is DOT-SP 13544. It has an expiration date of June 30, 2019 and was in the vehicle\npem1it binder at the time of the inspection.\nDOT-S? 13544\n(FIFTH REVISION)\n4 . REGULATIONS FROM WHICH EXEMPTED : 49 CFR § 172 . 301 ( a) in\nthat the proper shipping name and identification number need\nnot be marked on each package , § 172 . 30l (c) in that marking\nof t.he special permit number on each package is not required\nand§ 172 . 401 in that each cylinder must be labeled, except\nas provided herein .\nRESPONSE:\nSpecial Permit section 4 \"REGULATION FROM WHICH EXEMPTED\", does not provide the carrier an exemption\nfrom 172.401(a)(2); the misrepresentation of a hazardous material in a package by improper labeling.\n172.401 Prohibited labeling.\n\n<<<PAGE 5>>>\n\n(a) Except as otherwise provided in this section, no person may offer for transportation and no\ncarrier may transport a package bearing a label specified in this subpart unless:\n(2) The label represents a hazard of the hazardous material in the package\nOne cylinder's Red Flammable square on point diamond had faded from red to yellow which is\nrepresentative of an Oxidizer or Oxygen.\nNor does it provide any exemption from the label color specifications under 172.407(d)(l) & 172.417(b), or the\nsize requirements of the CGA C-7 label permitted under 172.400a(a)(l)(ii).\n172.407 Label specifications.\n(d) Color.\n(1) The background color on each label must be as prescribed in 172.411 through 172.448 of this\nsubpart, as appropriate.\n172.417 FLAMMABLE GAS label.\n(a) Except for size and color, the FLAMMABLE GAS label must be as follows:\n~ V\n(b) In addition to complying with 172.407, the background color on the FLAMMABLE GAS label must\nbe red.\nThe Flammable Gas square on point (diamond) label on the CGA C-7 label was no longer red but yellow.\n172.400a Exceptions from labeling.\n(a) Notwithstanding the provisions of 172.400, a label is not required on\n(1) A Dewar flask meeting the requirements in § 173.320 of this subchapter or a cylinder containing\na Division 2.1, 2.2, or 2.3 material that is durably and legibly marked in accordance with CGA C-7,\nAppendix A (IBR; see 171.7 of this subchapter). Notwithstanding this exception, overpacks must\nbe labeled (see 173.25 of this subchapter).\n(i) Not overpacked; and\n(ii) Durably and legibly marked in accordance with CGA C-7, Appendix A (IBR; see 171.7 of this\nsubchapter).\n171.7(n)(7) (7) CGA C-7, Guide to Preparation of Precautionary Labeling and Marking of Compressed Gas\nContainers, Appendix A, issued 2004 (8th Edition), into 172.400a\nCGA C-7-2011\nGUIDE TO PREPARATION OF PRECAUTIONARY LABELING AND MARKING OF COMPRESSED\nGAS CONTAINERS NINTH EDITION\n2 SCOPE\nAppendix A illustrates the basic marking consisting of DOT or TC proper shipping name; identification\nnumber; and 30-mm (1.25-in) diamond, which is permitted under conditions authorized by DOT\nand TC regulations as an alternative to the DOT/TC 100-mm (3.9-in) diamond label and marking [2,\n3].\nOne cylinder had a red diamond (square on point) that was visually less than the specified 1.25\" as I\ncompared them to the other cylinders. The Diamond was approximately 1 inch on each side.\nThis special permit does not grant any exemptions not directly expressed therein, and only exempts the\ncarrier from the following marking and labeling requirements:\n► The proper shipping name and identification number on the package (cylinder), per 172.301(a).\n► The Special Permit number marked on the package (cylinder),required of 172.301(c) and\n► The requirements that the packages must be labeled.\n\n<<<PAGE 6>>>\n\nThe exemption from the requirement that the cylinders need to be properly labeled does not create or imply\nthat any labels that are displayed, even though not required, can be improper or misleading. This was also\naddressed by PHMSA in an Interpretation (12-0146), in 2012 in their answering of question 2:\nQ2. Is it permissible to display a hazard label on a limited quantity package offered for\ntransportation and transported by surface modes?\nAl. The answer is yes, provided the label meets the applicable requirements of 49 CFR\nPart 172, Subpart E. No person may offer for transportation and no carrier may\ntransport a package bearing a label, unless the package contains a hazardous\nmaterial and the label represents the hazard of the material contained in the\npackage.\nWhile this interpretation speaks to a limited quantity label, I believe the interpretation and the DataQ are\nconceptually similar and therefor this interpretation can be expanded to address any label that is permissibly\napplied .\nCONCLUSION:\nI do not believe this documented violation to be an error, and see no need to remove it from the report.\n\n<<<PAGE 7>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety Administration\nEast Bui lding, PHH - 30\n1200 New Jersey Avenue, Southeast\nWashington, D.C. 20590\nSPECIAL PERMIT AUTHORIZATION\nDOT-SP 13544\nEXPIRATION DATE: June 30, 2019\nGRANTEE: AmeriGas Propane LP\nKing of Prussia, PA\nIn response to your June 25, 2015 application for renewal of DOT-\nSP 13544, the grantee status to DOT-SP 13544 for AmeriGas Propane\nLP is hereby renewed in accordance with 49 CFR § 107.109.\nCop ies of this special permit may be obtained by accessing the\nOffice of Hazardous Materials Safety Homepage at\nhttp://hazmat . dot.gov/sp app/special pe r mits/spec perm index .htm.\nThe most recent revision of the special permit supersedes all\nprevious revisions of the special permit. Photo reproductions\nand legible reductions of this special permit are permitted. Any\nalteration of this special permit is prohibited.\nIf you have questions regarding this action please call the\nOffice of Hazardous Materials Special Permits and Approvals at\n(202)366-4535.\nIssued in Washington D.C. on July 9, 2015.\nfor Dr. Magdy El-Sibaie\nAssociate Administrator for Hazardous Materials Safety\n\n<<<PAGE 8>>>\n\nAugust 5, 2013\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety Administration\nEast Building, PHH-30\n1200 New Jersey Avenue S.E.\nWashington, D.C. 20590\nDOT-SP 13544\n(FIFTH REVISION)\n(FOR RENEWAL, SEE 49 CFR § 107.109)\n1. GRANTEE:\n(See individual authorization letter)\n2. PURPOSE AND LIMITATIONS:\n3.\n4.\na. This special permit authorizes the transportation in\ncommerce of DOT Specification 4BA240 cylinders containing\nliquefied petroleum gas (LPG) and/or residue of LPG without\nhazard warning labels when transported by a motor vehicle\nthat is placarded. This special permit provides no relief\nfrom the Hazardous Materials Regulations (HMR) other than as\nspecifically stated herein. The most recent revision\nsupersedes all previous revisions.\nb. The safety analyses performed in development of this\nspecial permit only considered the hazards and risks\nassociated with transportation in commerce. The safety\nanalyses did not consider the hazards and risks associated\nwith consumer use, use as a component of a transport vehicle\nor other device, or other uses not associated with\ntransportation in commerce.\nc. Unless otherwise stated herein, this special permit\nconsists of the special permit authorization letter issued\nto the grantee together with this document.\nREGULATORY SYSTEM AFFECTED:\n49 CFR Parts 106, 107 and 171-\n180.\nREGULATIONS FROM WHICH EXEMPTED: 49 CFR § 172.30l(a) in\nthat the proper shipping name and identification number need\nnot be marked on each package, § 172.30l(c) in that marking\nof the special permit number on each package is not required\nand§ 172.401 in that each cylinder must be labeled, except\nas provided herein.\n\n<<<PAGE 9>>>\n\nContinuation of DOT-SP 13544 (5 th Rev.) 5.\n6.\nPage 2\nAugust 5, 2013\nBASIS: This special permit is based on the application of\nCarlson Logistics dated March 7, 2013 and additional\ninformation dated July 23, 2013 , submitted in accordance\nwith§ 107.105 and the public proceeding thereon.\nHAZARDOUS MATERIALS (49 CFR § 172.101):\nHazardous Materials Description\nProper Shipping Name Hazard Identi- Packing\nClass/ fication\nDivision Number Group\nLiquefied petrol eum gas 2.1 UN1075 N/A\nPropane 2.1 UN1 978 N/A\n7 . SAFETY CONTROL MEASURES:\na. PACKAGING - Prescribed packagings are DOT Specification\n4BA240 steel cylinders.\nb . OPERATIONAL CONTROLS :\n(1) The cyl inders must be transported on a motor\nvehicl e that is placarded with \"FLAMMABLE GAS \"\nplacards.\n(2) Sh i pping papers must reflect a correct c urrent\naccounting of al l cylinders both full and expended.\n(3) Cylinders must be secured in the vehicle in\naccordance with§ 177.8 34 (a).\n8 . SPEC I AL PROVISIONS: A current copy of this special permit\nmust be maintained at each facility where the package is\noffered for transportation .\n9. MODES OF TRANSPORTATION AUTHORIZED: Motor vehicle .\n10. MODAL REQUIREMENTS:\npermit.\nNone as a requirement of this special\n\n<<<PAGE 10>>>\n\nContinuation of DOT-SP 13544 (5 th Rev.) Page 3\nAugust 5, 2013\n11. COMPLIANCE: Failure by a person to comply with any of the\nfollowing may result in suspension or revocation of this\nspecial permit and penalties prescribed by the Federal\nhazardous materials transportation law, 49 U.S.C. 5101 et\nseq:\no All terms and conditions prescribed in this special\npermit and the Hazardous Materials Regulations, Parts\n171-180.\no Persons operating under the terms of this special\npermit must comply with the security plan requirement\nin Subpart I of Part 172 of the HMR, when applicable ~\no Registration required by§ 107.601 et seq., when\napplicable.\nEach \"Hazmat employee\", as defined in§ 171.8, who performs\na function subject to this special permit must receive\ntraining on the requirements and conditions of this special\npermit in addition to the training required by§§ 172.700\nthrough 172.704.\nNo person may use or apply this special permit, including\ndisplay of its number, when the special permit has expired\nor is otherwise no longer in effect.\nUnder Title VII of the Safe, Accountable, Flexible,\nEfficient Transportation Equity Act: A Legacy for Users\n(SAFETEA-LU)- 'The Hazardous Materials Safety and Security\nReauthorization Act of 2005' (Pub. L. 109-59), 119 Stat.\n1144 (August 10, 2005), amended the Federal hazardous\nmaterials transportation law by changing the term\n\"exemption\" to \"special permit\" and authorizes a special\npermit to be granted up to two years for new special permits\nand up to four years for renewals.\n\n<<<PAGE 11>>>\n\nContinuation of DOT-SP 13544 (5 th Rev.) Page 4\nAugust 5, 2013\n12. REPORTING REQUIREMENTS: Shipments or operations conducted\nunder this special permit are subject to the Hazardous\nMaterials Incident Reporting requirements specified in 49\nCFR §§ 171.15 - Immediate notice of certain hazardous\nmaterials incidents, and 171.16 ·\n- Detailed hazardous\nmaterials incident reports. In addition, the grantee(s) of\nthis special permit must notify the Associate Administrator\nfor Hazardous Materials Safety in writing, of any incident\ninvolving a package, shipment or operation conducted under\nterms of this special permit.\nIssued in Washington, D.C.\nfor Dr. Magdy El-Sibaie\nAssociate Administrator for Hazardous Materials Safety\nAddress all inquiries to:\nMaterials Safety, Pipeline\nAdministration, Department\n20590. Attention: PHH-31.\nAssociate Administrator for Hazardous\nand Hazardous Materials Safety\nof Transportation, Washington, D. C.\nCopies of this special permit may be obtained by accessing the\nHazardous Materials Safety Homepage at\nhttp : //hazmat.dot . gov/sp app/special permits/spec perm index.htm\nPhoto reproductions and legible reductions of this special permit\nare permitted. Any alteration of this special permit is\nprohibited.\nPO: bmoore","truncated":false,"body_characters":19358}