{"operation":"document","citation":"23-0003","title":"Denver Fire Department — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2023-08-28","effective_on":null,"summary":"23-0003 response to Denver Fire Department concerning 171.2, 173.304a, 180.3.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-23-0003.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-23-0003.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-23-0003","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/77871/230003.pdf","body":"<<>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nAugust 28, 2023\nChris Bartlett\nAttn: Cpt. Battenhouse\nDenver Fire Department,\n745 W. Colfax Ave\nDenver, CO 80204\nReference No. 23-0003\nDear Mr. Bartlett:\nThis letter is in response to your January 17, 2023, email requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the maintenance\nof Department of Transportation (DOT) specification cylinders and tanks stored for use on site\n(i.e., stationary containers). You state that the cylinders and tanks are not placed into\ntransportation in commerce and are periodically refilled onsite. It is your understanding that the\nrefilling of DOT specification marked cylinders and tanks places them “in commerce” making\nthem subject to the HMR.\nYour understanding is not correct. The refilling of a DOT specification marked cylinder or tank\nused as a stationary container does not place the container “in commerce” for purposes of the\nHMR. The HMR applies to persons who offer hazardous material for transportation or transport\nhazardous material in commerce and who perform or are responsible for performing a pre-\ntransportation function. Pre-transportation functions, such as filling, are performed in advance to\nprepare hazardous materials for transportation. Refilling a container intended to remain onsite\n(i.e., not be transported) would not be considered performance of a pre-transportation function.\nWe have further paraphrased and answered your specific questions as follows:\nQ1. You ask whether a stationary set of DOT specification cylinders that are stored onsite and\nperiodically refilled by a third party are subject to the HMR.\nA1. The answer is it depends. The use of the cylinders is not subject to the HMR. However, if\nthe cylinders are represented as meeting the requirements of the HMR, they are subject to\ncertain requirements of the HMR. In accordance with § 171.2(g), representing a\npackaging (i.e., a container) as meeting the requirements of the HMR governing its use in\ntransportation is prohibited unless it meets applicable requirements whether or not the\ncontainer is used or is to be used for the transportation of a hazardous material.\n\n<<>>\n\nTherefore, if the container is not maintained or qualified for use in transportation, the\nDOT specification marking must be covered or obliterated.\nQ2. You ask whether the maximum filling requirements listed in § 173.304a(a)(2) are\napplicable to stationary cylinder systems installed in a building and refilled by a third\nparty.\nA2. The answer is no. Cylinders that are filled and used at a private work-site and not offered\nfor transportation in commerce are not directly regulated under the HMR, but in fact\ncome under the jurisdiction of Occupation Safety and Health Administration (OSHA)\nStandards. It should be noted that based on 29 CFR § 1910.101, if the owner of the\ncylinder wishes to fill and continue to use the DOT specification cylinder but does not\nwish to requalify the cylinder as a DOT specification cylinder, they must cover or\nobliterate any DOT specification markings even when used entirely on private property.\nQ3. You ask whether the recertification (i.e., the requalification) requirements in 49 CFR Part\n180 are applicable to stationary cylinder systems installed in a building and refilled by a\nthird party.\nA3. The answer is yes, if the cylinders are represented as meeting the requirements of the\nHMR. Section 180.3(a) states no person may represent a packaging, such as a cylinder, as\nmeeting the requirements of Part 180 whether or not it is intended to be used for the\ntransportation of a hazardous material. If the owner of the DOT specification cylinder\nwishes to continue to use the cylinder but does not wish to re-qualify the cylinder as a\nDOT specification cylinder, the owner must cover or obliterate any DOT specification\nmarkings.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nDirk Der Kinderen\nChief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<>>\n\nCardez\n23-0003\nFrom: INFOCNTR (PHMSA)\nTo: Subject: Date: Dodd, Alice (PHMSA); Hazmat Interps\nFW: Formal Letter of Interpretation Request\nWednesday, January 18, 2023 9:43:41 AM\nDear Alice and team,\nPlease see the LOI request below. The actual question is in the first email in this string, and then the\ninquisitor added their mailing address in the next. Please let us know if anything else is needed.\nThanks!\n-Rachel (HMIC)\nFrom: Bartlett, Chris - DFD Fire Protection Engineer \nSent: Wednesday, January 18, 2023 9:31 AM\nTo: INFOCNTR (PHMSA) \nCc: Battenhouse, Timothy - DFD SF1008 Captain \nSubject: RE: Formal Letter of Interpretation Request\nCAUTION: This email originated from outside of the Department of Transportation (DOT). Do\nnot click on links or open attachments unless you recognize the sender and know the content\nis safe.\nRachel,\nThe physical address is:\nDenver Fire Department, Attn: Cpt. Battenhouse\n745 W. Colfax Ave, Denver, 80204\nChris Bartlett, PE, FPE | Fire Protection Engineer\nFire Dept / Fire Prevention Div | City and County of Denver\np: 720.614.9434 chris.bartlett@denvergov.org\nDenvergov.org/DFD @Denver_Fire\nFrom: INFOCNTR (PHMSA) \nSent: Tuesday, January 17, 2023 12:15 PM\nTo: Bartlett, Chris - DFD Fire Protection Engineer ; INFOCNTR\n(PHMSA) \nCc: Lukus, Brian M. - DFD Fire Protection Engineer ; Lanz, James D. -\nDFD CE2340 Engineer-Architect Specialist \nSubject: [EXTERNAL] RE: Formal Letter of Interpretation Request\nDear Chris,\nWe have received your request for a written letter of interpretation regarding the hazardous\nmaterials regulations (49 CFR Parts 171-180). The hazardous materials regulations are available at\n\n<<>>\n\nthe following URL:\nhttps://www.phmsa.dot.gov/phmsa-regulations\nHowever, before we can submit your request for processing, please respond to this email with:\nPhysical Mailing Address\nSincerely,\nRachel, Hazardous Materials Specialist\nAn e-mail response from this office is considered informal guidance. Formal guidance may be\nrequested in accordance with 49 CFR 105.20. https://www.phmsa.dot.gov/standards-\nrulemaking/hazmat/hazardous-materials-information-center\nFrom: Bartlett, Chris - DFD Fire Protection Engineer \nSent: Tuesday, January 17, 2023 11:32 AM\nTo: INFOCNTR (PHMSA) \nCc: Lukus, Brian M. - DFD Fire Protection Engineer ; Lanz, James D. -\nDFD CE2340 Engineer-Architect Specialist \nSubject: Formal Letter of Interpretation Request\nCAUTION: This email originated from outside of the Department of Transportation (DOT). Do\nnot click on links or open attachments unless you recognize the sender and know the content\nis safe.\nPipeline and Hazardous Materials Safety Administration\nOffice of Standards and Rulemaking PHH10\nU.S. Department of Transportation\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nTo Whom it May Concern,\nWe would like an interpretation of 49 CFR parts 100 through 185 and specifically if these regulations\nare in force for all stationary DOT specification cylinders and tanks if they are refilled by a gas\nsupplier without being physically transported from their point of use. Can you confirm that the act\nof refilling DOT labeled cylinders and tanks places them in commerce as such subject to the above\nregulations.\nSpecifically: PHMSA Interpretation Response 10-0207 Interpretation Response | PHMSA (dot.gov)\n\n<<>>\n\nrequires DOT marked cylinders to be maintained in accordance with the HMR when offered for use\nin commerce. If a stationary set of DOT marked cylinders is being stored on-site and periodically\nrefilled by a third party gas supplier are these cylinders subject to the HMR? Are the following\nsections applicable to such stationary cylinder systems installed in a building being refilled by a third\nparty gas supplier:\nThe maximum fill requirements listed in 49 CFR part 173.304a (a) (2) – Table 1 to Paragraph\n(a)(2)\nThe recertification requirements of 49 CFR Part 180.\nChris Bartlett, PE | Fire Protection Engineer\nFire Dept / Fire Prevention Div | City and County of Denver\np: 720.614.9434 chris.bartlett@denvergov.org\nDenvergov.org/DFD @Denver_Fire","truncated":false,"body_characters":8606}