{"operation":"document","citation":"19-0029","title":"Holland & Knight, LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2019-05-24","effective_on":null,"summary":"19-0029 response to Holland & Knight, LLP concerning 171.1.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0029.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0029.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0029","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/71531/190029.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nMay 24, 2019\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nSteven D. Gordon, Esq.\nPartner\nHolland & Knight LLP\n800 17th Street, N.W., Suite 1100\nWashington, DC 20006\nReference No. 19-0029\nDear Mr. Gordon:\nThis letter is in response to your March 14, 2019, request and subsequent conversations for\nclarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable\nto retail mobile fueling operations conducted by your client, Filld, Inc. (Filld). You describe a\nscenario in which Filld: ( 1) purchases non-Department of Transportation (DOT) specification\nmetal refueling tanks manufactured by Aluminum Tank Industries, Inc. under DOT Special\nPermit (SP) 14227; and (2) conducts a retail mobile fueling operation that transports gasoline by\nmotor vehicle and then offloads that gasoline to refuel other motor vehicles (i.e., dispensing\ngasoline into parked automobiles).\nWe have paraphrased and answered your questions as follows:\nQ 1. You ask whether Filld' s retail mobile fueling operations are under the purview of the\nDOT's regulations pursuant to the Federal hazmat law (49 U.S.C. § 5101 et seq.) and the\nHMR.\nAl. The answer is yes. Based on the information you provided, Filld's retail mobile fueling\noperations offer, transport, and unload \"UN1203, Gasoline,\" a regulated hazardous\nmaterial, on public roads in commerce. The Federal hazmat law gives the Secretary of\nTransportation the general authority and mandate to prescribe regulations for the \"safe\ntransportation of hazardous materials in intrastate, interstate, and foreign commerce\" in\naccordance with 49 U.S.C. § 5103. Section 49 CFR 1.96(b)(l) delegates PHMSA with\nthe responsibility for promulgating these regulations, which it has done under the HMR,\nand the HMR governs the safe transportation of hazardous materials in intrastate,\ninterstate, and foreign commerce (see § 171.1 of the HMR).\n\n<<<PAGE 2>>>\n\nQ2. You ask whether the scenario described above is in compliance with the HMR.\nA2. Provided Filld complies with all of the additional applicable HMR requirements, the\nnecessary terms and conditions of DOT-SP 14227, and the procedures described in the\nattachment to the incoming letter, the scenario described above is in compliance with the\nHMR.\nQ3. You ask whether a transport vehicle operating under the terms and conditions of DOT-SP\n14227 is considered a cargo tank motor vehicle (CTMV) as defined by the HMR.\nA3. The answer is no. Because the packagings authorized in DOT-SP 14227 are technically\nnon-bulk and, except for capacity, are fabricated under a specification for an Intermediate\nBulk Container (IBC), they do not meet the definition of a CTMV as defined in § 171.8\nof the HMR.\nPlease note that some of the activities you describe in the attachment to your letter such as the\nrequirement for a commercial driver's license are under the purview of the Federal Motor Carrier\nSafety Administration (FMCSA). FMCSA is the lead Federal government agency responsible\nfor regulating and providing safety oversight of commercial motor vehicles. You may wish to\ncontact FM CSA should you require clarification of any requirements relevant to commercial\ndriver's licenses.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely, r-7d~- ~\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nWmons0r,\nICf-0O2.CJ\nJanuary, lkeya CTR (PHMSA)\nFrom:\nSent:\nTo:\nCc:\nSubject:\nAttachments: Kelley, Shane (PHMSA)\nThursday, March 14, 2019 1:58 PM\nHazmat Interps\nINFOCNTR (PHMSA)\nFW: Filld, Inc. request for Letter of Clarification\nMarch 14 2019 letter to Shane Kelley re Filld Inc Mobile Fueling Service.pdf\nPlease log in for response\nThank you\nFrom: Steven.Gordon@hklaw.com [mailto:Steven.Gordon@hklaw.com]\nSent: Thursday, March 14, 2019 1:35 PM\nTo: Kelley, Shane (PHMSA) <shane.kelley@dot.gov>\nCc: Schoonover, William (PHMSA) <william.schoonover@dot.gov>; pstoecklein@filld.com; Daniel.Burkard@hklaw.com;\nMike.Friedberg@hklaw.com\nSubject: Filld, Inc. request for Letter of Clarification\nShane:\nFollowing up on our meeting of February 21, 2019, I am submitting a request for a letter of clarification regarding Filld's\ncompliance with the HMTA and HMTR. I will give you a call in the next day or so to follow up. In the meantime, if you\nhave any questions, please contact me.\nThanks.\nSteve\nSteven Gordon I Holland & Knight\nPartner\nHolland & Knight LLP\n80017th Street N.W., Suite 1100 I Washington, DC 20006\nPhone 202.457.7038 I Fax 202.955.5564\nsteven.gordon@hklaw.com I www.hklaw.com\nAdd to address book I View professional biography\nNOTE: This e-mail is from a law firm, Holland & Knight LLP (\"H&K\"), and is intended solely for the use of the individual(s) to whom it is\naddressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and\ndo not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client\nunless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If\nyou properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to\npreserve the attorney-client or work product privilege that may be available to protect confidentiality.\n1\n\n<<<PAGE 4>>>\n\nHolland & Knight\n800 17th Street, NW, Suite 1100 I Washington, DC 20006 IT 202.955.3000 I F 202.955.5564\nHolland & Knight LLP I www.hklaw.com\nSteven D. Gordon\n+1 202-457-7038\nSteven.Gordon@hklaw.com\nMarch 14, 2019\nVia email (shane.kelley@dot.gov)\nShane Kelley\nDirector, Standards and Rulemaking\nOffice of Hazardous Materials Safety\nPipeline and Hazardous Materials Safety Administration\nU.S. Department of Transportation\n1200 New Jersey Avenue; SE\nWashington, D.C. 20590\nRe: Filld, Inc. Mobile Fueling Service\nDear Mr. Kelley:\nThis firm represents Filld, Inc. (Filld), which operates a retail mobile fueling service that\nutilizes transport vehicles configured to transport and dispense gasoline to parked cars, including\ncars parked on public streets. Based upon the information and representations provided below, I\nseek confirmation on the following two issues regarding the mobile fueling operation conducted\nby Filld:\n1. Because Filld's mobile fueling operation involves the transportation of gasoline on\nand along public roads, including unloading incidental to that transportation (i.e. dispensing\ngasoline into cars), it is within the scope of the transportation and commerce that the Department\nof Transportation (DOT) regulates pursuant to the Hazardous Materials Transportation Act\n(HMTA; 49 U.S.C. § 5101 et seq.), and the Hazardous Materials Regulations (HMR; 49 CFR\nParts 171-180); and\n2. Filld's transportation and unloading of gasoline on and along public roads, using the\nequipment and procedures described below, complies with all applicable requirements of, and is\nauthorized by, the HMT A and HMR.\nThe Filld Operation\n. • Filld utilizes mobile fueling trucks that follow algorithmically-optimized routes to deliver\ngasoline primarily to individual consumers and small- to mid-size businesses. Filld transports\nthe fuel via unmodified, conventional pickup trucks (e.g., GM 3500HD), each of which carries\nfour, DOT-approved, Intermediate Bulk Containers (IBCs). Each IBC has an individual volume\nof less than 119 gallons and is manufactured by Aluminum Tank Industries, Inc. (Winter Haven,\nFL) pursuant to DOT Special Permit 14227. ·\n\n<<<PAGE 5>>>\n\nShane Kelley\nMarch 14, 2019\nPage2\nGasoline is unloaded from the IBC via an electric pump with a hose and nozzle assembly\nspecifically designed for dispensing gasoline into motor vehicles. Filld's trucks are equipped\nwith a variety of safety equipment including proprietary secondary spill containment, electronic\nleak . detection devices, fire suppression equipment, and redundant emergency shut-off switches.\nFilld drivers are required to have a Commercial Driver'. s License (CDL) or to be actively\nengaged in its apprenticeship program through which it trains and transition a non-CDL driver\ninto a credentialed CDL driver. At any time when a non-CDL driver is operating a Filld vehicle,\nthat driver may not transport more than 119 gallons of gasoline. Every CDL driver is required to\npossess a Hazardous Materials Transportation (i.e., HM 26/181) endorsement and any non-CDL\ndriver is certified to an equivalent standard per internal hazmat handling policies/protocols.\nA more detailed summary of the general procedures carried out by Filld operators during\neach mobile fueling operation is as follows:\nArrival and Parking at Customer Fueling Site\na. Upon arrival at the customer fueling site, immediately position the Filld Truck with\nrespect to each vehicle being fueled so as to minimize the threat of damage to equipment (e.g.,\ndispensing hose) that could be posed by passing motor vehicles.\nb. Activate hazard lights and select the light bar setting directing approaching vehicles to\ndivert around the Filld Truck on whichever side is opposite the customer vehicle.\nc. Upon exiting the Filld Truck, place orange safety cones at limits of.operating area to\nthe rear and to the side of the Filld Truck adjacent to the customer vehicle.\nd. If fuel dispensing operations occur during nighttime hours, activate and direct side-\nand rear-mounted floodlights as needed to ensure adequate lighting of the work area.\nFuel Dispensing\na. Put on gasoline-rated safety gloves.\nb. Select the proper fuel grade and type by connecting the fuel draw dry break to the\nproper tank dry break.\nc. At the selector hose port point, open the ball valve for the attached fuel tank.\nd. Unlatch dispensing nozzle and unroll only the necessary amount of fuel hose from the\nhose reel. Deploy approved hose ramp if needed to avoid obstructing a public sidewalk or\nbicycle lane.\ne. Place approved drip/spill pan beneath each fuel fill opening (i.e., the point of\nconnection between the nozzle and the customer vehicle) prior to and during dispensing\noperations.\nf If the customer vehicle fuel fill opening is not metal and establishing metal-to-metal\ncontact between the dispensing nozzle and the fuel fill tube is not possible or if such contact is\nuncertain, connect the spooled bonding wire to a metal point on the customer vehicle throughout\nrefueling.\n#64826553_vl\n\n<<<PAGE 6>>>\n\nShane Kelley\nMarch 14, 2019\nPage 3\ng. An operator is required to remain at the nozzle during the entire fueling operation.\nLeaving the nozzle unattended at any time is strictly prohibited.\nh. Utilize approved spill rag keeping it underneath and in constant contact with the nozzle\nduring fuel dispensing to catch and contain any possible drips or minor spillage.\ni. -Continue fueling until the auto-shutoff nozzle clicks off. Topping off or filling beyond\nthe auto-shutoff is strictly prohibited. Dispensing must be ceased immediately if fuel reaches the\nnozzle tip or becomes visible.\nCompleting Delivery and Departing Customer Fueling Site\na. Upon completion of fuel dispensing, securely attach the customer vehicle gas cap (if\nequipped) and close the gas flap.\nb. Minimize wear and tear on the fuel hose by ensuring that the hose recoils cleanly and\ntightly onto the reel via the hose guide.\nc. Securely re-rack the nozzle in the holder and shut off the pump.\nd. Collect the drip/spill pan and orange safety cones and store securely inside the Filld\n. Truck canopy.\ne. Deactivate hazard and safety light bar lights before departing the customer fueling site.\nThank you for attention to this matter. Should you have any questions or desire\nadditional information, please do not hesitate to contact me.\nSincerely,\nHOLLAND & KNIGHT LLP\nSteven D. Gordon\nSDG:aern\ncc: Pierson Stoecklein\n#64826553_vl","truncated":false,"body_characters":12001}