{"operation":"document","citation":"19-0115","title":"McAnally Wilkins Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2020-01-09","effective_on":null,"summary":"19-0115 response to McAnally Wilkins Inc. concerning 172.502.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0115.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0115.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0115","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/73146/190115.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation .\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nJ).N G 9 2020\nRay Miller\nMcAnally Wilkins Inc.\n110 W. Louisiana, Suite 150\nMidland, TX 79701\nReference No. 19-011 5\nDear Mr. Miller:\nThis letter is in response to your September 23, 2019, email requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CPR Parts 171 -180) applicable to prohibited\nplacarding. You explain that it is a common industry practice when transporting frac sand to\ndesignate the shipping containers with a solid colored square that communicates the grade of\nsand only. You further explain that these squares come in various solid colors (e.g., blue, red,\netc.) and do not communicate hazard classifications (e.g., Class 3 \"Flammable Liquid\" or Class 4\n\"Dangerous When Wet\"). Specifically, you seek confirmation of your understanding that the\ncolored squares alone are not prohibited by§ 172.502(a)(2) and that the vehicles are not subject\nto the HMR since they do not transport any hazardous materials, specification packages, or\nprovide any hazard communication.\nYour understanding is correct. Based on the photographs you provided, the solid colored squares\nwould not be prohibited by the HMR. Although they have similar colors to placards subject to\nthe HMR, the square display (i.e., not \"square-on-point\") and lack of content is different from\nthe hazardous materials placard and would not be confused with prescribed placards in the HMR.\nPlease note that in accordance with§ 172.502(a)(2), no person may affix or display on a freight\ncontainer any sign, advertisement, slogan (such as \"Drive Safely\"), or device that, by its color,\ndesign, shape or content, could be confused with any placard prescribed in the HMR.\nI hope this information: is helpful. Please contact us if we can be of further assistance.\nSincerely . __,/ J /\nt~\n\"kDer~ ,\nChief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<<PAGE 2>>>\n\nDodd, Alice (PHMSA)\nFrom: INFOCNTR (PHMSA)\nSent:\nTo:\nSubject:\nAttachments:\nFriday, September 27, 2019 9:20 AM\nHazmat Interps\nFW: Request for Interpretation\nblue pic.jpg; box pic.jpg\nHello Alice and lkeya,\nPlease see below and attached documents for letter of interpretation request. It is the opinion of the HMIC that letter\n13-0230 (which he provided to enforcement) and letter 16-0058 fit his situation, however, enforcement will not accept\nthese letters so the requestor is moving forward with the LOI request. He spoke with Robert from the HMIC and made it\nclear that he took multiple actions to make the communication on his truck not look like HMR placards, since he is not\nhauling any hazardous materials. Enforcement is still taking action against him so he is hoping to use a specific letter to\ncontest enforcement.\nPlease contact our office with any questions.\nThanks,\nKathryn, HMIC\nFrom: Ray Miller [mailto:Ray@mcanallywilkins.com)\nSent: Monday, September 23, 2019 5:40 PM\nTo: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>\nSubject: Request for Interpretation\nCompleted by Robert on 09/24/2019 @ 11:19AM.\nLeft voicemail.\nSee LOI 16-0058\nTo Whom It May Concern,\nI originally requested an interpretation on this issue in May. I was contacted and referred to interpretation reference\nnumber 13-0230. I do not believe that interpretation 13-0230 applies to these circumstances due to the lack of\nbackground color and the specific communication present in the photos submitted with 13-0230. I am again requesting\nthat an interpretation be made based on the use of markings like those I have attached to this email with a colored\nsquare and no forms of communication present on the colored square. My reasons for believing that HMR\n172.502(a)(2) do not apply to the attached devices are outlined below. If an interpretation exists that addresses colored\nsquares with no communication printed thereon, I would appreciate a reference to the interpretation. Thank you again\nfor your consideration.\nI would like to request an interpretation on applicability of HMR 172.502(a)(2) Sign or Device Could Be Confused With\nHM Placard. FMCSR 172.502(a)(2) states: that no person may attach \"Any sign, advertisement, slogan (such as \"Drive\nSafely\" ), or device that, by its color, design, shape or content, could be confused with any placard prescribed in this\nsubpart.\" It is now common in the t ra nsportation of frac sand containers to designate the grade of sand with a solid colored\n1\n\n<<<PAGE 3>>>\n\nsqua re placed on the side of the container. I believe that in and of itself, a colored square alone, does not meet the elements\nneeded to establish a violation of CFR 49 HMR 172.502(a)(2), and furthermore, a vehicle not transporting HM, spec packages,\nand not communicating that HM is being transported, is not subject to HMR.\nAll placards described in the placarding regulations are required to be displayed as shown in the diagrams ranging from\n172.521 to 172.560. All of these diagrams require that the placard be mounted in a \"square on point\"\nconfiguration . The colored squares located on the sand boxes are mounted horizontally rather than in the square on\npoint positions to specifically ensure that they will not be confused with placards \"prescribed\" in the placarding section\nof HMR. All placards described in the placarding regulations are required to have certain words, numbers, and/or\nsymbols on them printed in prescribed sizes and colors to communicate the hazards associated with the HM commodity\nbeing transported . These colored squares are free of any words, numbers, and/or symbols so as to specifically ensure\nthat they will not be confused with any placard \"prescribed\" in the placarding section of HMR.\n§171.1 Applicability of Hazardous Materials Regulations (HMR) to persons and functions.\nFederal hazardous materials transportation law (49 U.S.C. 5101 et seq.) directs the Secretary of Transportation to\nestablish regulations for the safe and secure transportation of hazardous materials in commerce, as the Secretary\nconsiders appropriate. The Secretary is authorized to apply these regulations to persons who transport hazardous\nmaterials in commerce. In addition, the law authorizes the Secretary to apply these regulations to persons who cause\nhazardous materials to be transported in commerce. The law also authorizes the Secretary to apply these regulations to\npersons who manufacture or maintain a packaging or a component of a packaging that is represented, marked, certified,\nor sold as qualified for use in the transportation of a hazardous material in commerce. Federal hazardous material\ntransportation law also applies to anyone who indicates by marking or other means that a hazardous material being\ntransported in commerce is present in a package or transport conveyance when it is not, and to anyone who tampers\nwith a package or transport conveyance used to transport hazardous materials in commerce or a required marking,\nlabel, placard, or shipping description. Regulations prescribed in accordance with Federal hazardous materials\ntransportation law shall govern safety aspects, including security, of the transportation of hazardous materials that the\nSecretary considers appropriate. In 49 CFR 1.53, the Secretary delegated authority to issue regulations for the safe and\nsecure transportation of hazardous materials in commerce to the Pipeline and Hazardous Materials Safety\nAdministrator. The Administrator issues the Hazardous Materials Regulations (HMR; 49 CFR parts 171 through 180)\nunder that delegated authority. This section addresses the applicability of the HMR to packaging represented as\nqualified for use in the transportation of hazardous materials in commerce and to pre-transportation and transportation\nfunctions.\nThe vehicles transporting these sand boxes do not fall into any of the categories that would make them subject to\nHMR. They are not used to transport HM in commerce. The carrier is not causing HM to be transported in\ncommerce. The carrier is not manufacturing a package or component of a spec package or a package qualified to\ntransport HM. They are not marking a package to communicate that HM is being transported. They do not meet any of\nthe conditions found in HMR 171.1 required to be present for HMR to apply to the carrier or the driver.\nI would also ask you to consider that the use of a colored square, in and of itself, is not to be confused with a placard\nsimply because of its square shape and solid color. If this is confused with a placard, based only on shape and color,\nthen every CMV with its flip placards turned to solid white while not carrying HM would be in violation of HMR 172.502\n(a)(2). These white flip placards are more likely to be confused with placards \"prescribed\" in the HMR placarding\nregulations based on the diamond shape than a solid square mounted horizontally on the transport vehicle or package.\nI have attached two example pictures for your review to assist in offering an interpretation.\nThank you for your consideration in this matter. I look forward to your response.\nRespectfully,\n2\n\n<<<PAGE 4>>>\n\nRay Miller\nDOT Compliance and Safety Services\nMcAnally Wilkins Inc.\n110 W. Louisiana, Suite 150\nMidland, Texas 79701\n432-685-9368 Office\n432-934-1701 Cell\nray@mcanallywilkins.com\nM Lt ,, IL Kl\n1,-.01<1.-.t I\n3\n\n<<<PAGE 5>>>\n\nALO\n402580081\n42/17\n\n<<<PAGE 6>>>","truncated":false,"body_characters":9402}