{"operation":"document","citation":"24-0071","title":"AWM Associates, LLC — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2024-10-17","effective_on":null,"summary":"24-0071 response to AWM Associates, LLC concerning 171.1, 180.407, 180.415.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-24-0071.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-24-0071.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-24-0071","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2025-03/240071.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nOctober 17, 2024\nMike Millard\nPresident/Chief Safety Officer\nAWM Associates, LLC\n7911 Morrow Ave NE\nAlbuquerque, NM 87110\nReference No. 24-0071\nDear Mr. Millard:\nThis letter is in response to your August 15, 2024, letter requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to cargo tank testing\nrequirements. Specifically, you ask whether it is a violation of the HMR for a non-DOT\nspecification cargo tank without a specification plate to be marked with a “V,” indicating it has\npassed the external visual inspection in accordance with § 180.407. You state that it is your\nunderstanding that a cargo tank without a specification plate cannot be marked as passing the\nexternal visual test, and that this would be a violation of §§ 180.407(d)(2)(vi), 180.415(a), and\n171.1(a). You have also attached two previously issued letters of interpretation (Reference Nos.\n17-0026 and 10-0186) which discuss markings on non-specification packagings.\nYour understanding is incorrect. The sections you reference do not require the presence of a\nspecification plate as a condition of performing the testing you describe. As stated in PHMSA’s\npreviously issued letter of interpretation (Reference No. 17-0026), it is not a violation of the\nHMR for a cargo tank owner to voluntarily perform requalification tests on a non-DOT\nspecification cargo tank and to mark the cargo tank as having passed those tests. However, by\nvoluntarily applying those markings, the owner of the cargo tank is responsible for performing\nthose tests in accordance with all HMR requirements.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nAlexander Wolcott\nActing Chief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 2>>>\n\nLarson\n24-0071\nFrom: INFOCNTR (PHMSA)\nTo: Dodd, Alice (PHMSA)\nCc: Hazmat Interps\nSubject: FW: Mailed 8/15/2024\nDate: Tuesday, August 20, 2024 10:49:45 AM\nAttachments: PHMSA Ltr 2024-08-15 tank markings.pdf\nHello Alice,\nPlease see the attached interpretation request. Let us know if you need anything.\nSincerely,\nJanaye\nFrom: awmassociates@gmail.com <awmassociates@gmail.com>\nSent: Thursday, August 15, 2024 5:11 PM\nTo: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>\nSubject: Mailed 8/15/2024\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.\nFor your consideration.\nMike Millard\nPresident/Chief Safety Officer\nCell: 505-595-5158\nEmail: AWMAssociates@gmail.com\n\n<<<PAGE 3>>>\n\nAWM Associates, LLC\nAugust 15, 2024\n7911 Morrow Ave NE\nAlbuquerque, NM 87110\nCell: (505) 595-5158\nEmail: awmassociates@gmail.com\nMr. Shane Kelley\nU.S. DOT/PHMSA (PHH-10)\nDirector, Standards and Rulemaking Division\n1200 New Jersey Avenue, SE East Building, 2nd Floor\nWashington, DC 20590\nReference: PHMSA Interpretations 17-0026 and 10-0186 test markings for non-DOT packages\nDear Mr. Kelly:\nI have questions regarding earlier interpretations by PHMSA regarding marking non-DOT cargo\ntanks per 49 CFR Part §180.415 considered the complexity of the HMR?\nI have cautioned owners of non-DOT cargo tanks about using the \"V\" for external visual\ninspections per 49 CFR Part §180.407(d)(2)(vi) \"All markings on the cargo tank required by parts 172,\n178 and 180 of this subchapter must be legible;\" If the DOT specification plate is absent, how can the\nnon-DOT cargo tank be marked as passing the external visual test?\nI consider the issue to be a violation of 49 CFR Part §180.407(d)(2)(vi), Part §180.415(a) \"Each\ncargo tank successfully completing the test and inspection requirements contained in §180.407 must\nbe marked as specified in this section.,\" and Part §171.1(a) \"Packagings. Requirements in the HMR\napply to each person who manufactures, fabricates, marks, maintains, reconditions, repairs, or tests a\npackaging or a component of a packaging that is represented, marked, certified, or sold as qualified for\nuse in the transportation of a hazardous material in commerce, including each person under contract\nwith any department, agency, or instrumentality of the executive, legislative, or judicial branch of the\nFederal government who manufactures, fabricates, marks, maintains, reconditions, repairs, or tests a\npackaging or a component of a packaging that is represented, marked, certified, or sold as qualified for\nuse in the transportation of a hazardous material in commerce.\"\nI have no issues with the \"f\" for internal inspection, \"P\" for pressure retest or \"K\" for leakage\ntest; however, without a DOT specification plate per Part §178.345-14 a non-DOT cargo tank cannot be\nmarked with a \"V\" indicating it passed an external inspection per Part §180.407(d)(2)(vi.) I believe the\n\"V\" marking is a violation of Part §180.415(a) and Part §171.1(a) as the \"V\" marking implies the non-\nDOT package fully meets the requirements of the HMR 49 CFR Parts §100 through $199.\nPage 1 of 2\n\n<<<PAGE 4>>>\n\nI have attached the referenced interpretations for your review. I appreciate your time in\nresponding to my request for a written interpretation regarding the marking of non-DOT cargo tanks with\ntest markings required per 49 CFR Part §180.415.\nSa\n6 - 20 кр\n\"EVERGENCY!\nVIPK markings on a non-DOT tank transporting diesel fuel.\nSincerely;\nTin sun\nMichael Millard\nPresident & Chief Safety Officer\nAttachments:\nPage 2 of 2\n\n<<<PAGE 5>>>\n\nPHMSA Interpretation\nReference No. 17-0026\n\n<<<PAGE 6>>>\n\nof Transportation\nU.S. Department\nWashington, DC 20590\n1200 New Jersey Avenue, SE\nPipeline and Hazardous\nMaterials Safety\nAdministration\nAUG 1 5 2017\nJohn Hardridge\nInstructor\n3908 Vista Drive\nNorman, OK 73071\nReference No. 17-0026\nDear Mr. Hardridge:\nThis letter is in response to your March 9, 2017, email requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to cargo tank requalification\ntesting and marking. Specifically, you describe a scenario where a person voluntarily marks the\nretest date and the retest identification marking on a cargo tank in accordance with Part 180,\nregistration number.\nSubpart E. You further note the cargo tank does not have a specification plate, special permit, or\nWe have paraphrased and answered your questions as follows:\nQ1. You ask whether the HMR permit a person to perform requalification tests and apply\ntank when not required.\nassociated markings on a non-Department of Transportation (DOT) specification cargo\nThe answer is yes. Nothing in the HMR prohibits a cargo tank owner from voluntarily\nperforming requalification tests on a non-DOT specification cargo tank. Typically, a\nnon-DOT specification cargo tank is not subject to the periodic inspection or retest\nrequirements of the HMR. However, the HMR include scenarios where a non-DOT\nspecification cargo tank must undergo certain requalification testing and marking in Part\n100, Subpart E. For example, § 173.315(m)(2) specifies conditions where non-DOT\nbe marked in accordance with § 180.415.\nspecification cargo tanks containing anhydrous ammonia require certain testing and must\nQ2.\nYou ask whether a person who voluntarily tests and marks a non-DOT specification\ncargo tank in accordance with Part 180, Subpart E is subject to performing the applicable\ntests and applying the retest markings in accordance with the HMR.\nA2.\nThe answer is yes. Under § 171.2(g), no person may represent, mark, or offer a\nmarked, and retested in accordance with the applicable requirements. Section 171.2(h)(3)\npackaging as meeting the requirements of the HMR unless the packaging is maintained,\nspecifies that test dates are subject to paragraph (g) when associated with the\n\n<<<PAGE 7>>>\n\n\"specification, registration, approval, retest, exemption, or special permit markings\" that\nindicate HMR compliance. Therefore, if the \"test date\" and \"retest\" identification\nthe test and marking must be followed.\nmarkings are both applied to the cargo tank, then the applicable HMR requirements for\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 8>>>\n\nAchman\n'71•2\nGoodall, Shante CTR (PHMSA)\nGenual resuinement\nFrom:\n17 - 00210\nSent:\nINFOCNTR (PHMSA)\nTo:\nThursday, March 09, 2017 2:46 PM\nSubiect:\nHazmat Interps\nFW: Request for interpretation on cargo tank testing of non-spec tanks\nHi Shante/Alice,\nPlease submit this as a letter of interpretation. Mr. Hardridge spoke with Eamonn.\nPlease let me know if you have any questions.\nThanks,\nJordan\nFrom: ohp31@yahoo.com [mailto:ohp31@yahoo.com]\nSent: Thursday, March 09, 2017 1:19 PM\nTo: INFOCNTR (PHMSA) < INFOCNTR. INFOCNTR@dot.gov>\nSubject: Request for interpretation on cargo tank testing of non-spec tanks\nTo whom it may concern.\nThere has been some controversy over enforcement of test date markings on a non-specification cargo tanks\nused to transport combustible liquids.\nThe first piece of information and question involved is as follows:\nSituation: An owner of a non-specification cargo tank wishes to test and retest his cargo tank according to Part\n180 Subpart D and mark the tank accordingly, even though not required.\nviolation of Part CFR 49 Part 171.2(h)?\nQuestion #1: Is the person conducting the tests and marking the test and test dates on the non-spec tank in\nResulting Enforcement Actions: I have seen some enforcement agencies taking enforcement actions on\npersons who have voluntarily performed tests and retests of non-spec cargo tanks and have marked said tanks\nwith the test date makings in Part 180. These tests have been conducted to reassure the owners that the tanks\ninvolved are in good condition. The test and test date markings are shown as a convenient way to tell the owner\nwhen he should conduct the next test or tests. Basically, the owner is complying with the test and marking\nrequirements in Part 180 even though not required. The enforcement agencies involved claim that this is a\n\"test dates associated with the specification....\nviolation of 171.2(g) due to the next paragraph (h) stating that the prohibition of displaying markings includes:\nInvolved Regulations:\n\n<<<PAGE 9>>>\n\n171.2(g) No person may represent, mark, certify, sell, or offer a packaging or container as meeting the\nrequirements of this subchapter governing its use in the transportation of a hazardous material in commerce\nunless the packaging or container is manufactured, fabricated, marked, maintained, reconditioned, repaired, and\nretested in accordance with the applicable requirements of this subchapter.\n171.2(h) The representations, markings, and certifications subject to the prohibitions of paragraph (g) of this\nsection include:\n(1) Specification identifications that include the letters \"ICC\", \"DOT\", \"CT\", \"MC\", or \"UN\";\nor \"R\"; and\n(2) Exemption, special permit, approval, and registration numbers that include the letters \"DOT\", \"EX\", \"M\",\n(3) Test dates associated with specification, registration, approval, retest, exemption, or special permit\nmarkings indicating compliance with a test or retest requirement of the HMR, or an exemption, special permit,\napproval, or registration issued under the HMR or under subchapter A of this chapter.\nComments: The way I have always understood Part 171.2(h) is that the only way to misrepresent a cargo tank\nas a specification tank, when it is not, is if a specification plate with a certification date is display on a non-spec\ntank or a tank that does not completely meet the requirements of the specification named on the plate.\nThe requirement in 171.2(h)(3) dealing with \"Test dates associated with specification...\" seems to only imply\nthat it is prohibited to display retest dates on a specification cargo tank when the tests indicated by the marking\nhave not been conducted or were conducted improperly. I do not see how markings of tests and tests\ndates could be interpreted as representing a non-specification tank as a specification tank when the tests were\nproperly conducted according to Part 180, Subpart D, even though it is not required.\nIf the action above is not a violation of Part 171.2, then the second piece of information and question would\nbe:\nSituation: The owner of a non-spec tank chooses to test and mark said cargo tank as required for spec tanks in\nis safe.\nPart 180. Even though not required, the person follows the regulations as a convenient way to assure the tank\nviolation for not testing and marking correctly?\nQuestion #2: If that person does not follow the retest and marking regulation exactly as written, is the person in\nIf you should have questions or need clarifications regarding this request, please do not hesitate to contact me.\nRespectfully,\n3908 Vista Drive\nJohn Hardridge, Independent Instructor for Hazardous Material Transportation Regulations\nNorman, OK. 73071\nPhone: (405) 413-7451\nE-mail: ohp31@yahoo.com\n2\n\n<<<PAGE 10>>>\n\nPHMSA Interpretation\nReference No. 10-0186\n\n<<<PAGE 11>>>\n\nU.S. Department of Transportation\nSafety Administration\nPipeline and Hazardous Materials\nWashington, D.C. 20590\n1200 New Jersey Ave, SE\nOCT 29 2010\nMs. Erin N. Jarman\nURS Corporation\n1600 Perimeter Park Drive, Suite 400\nMorrisville, NC 27560\nReference No.: 10-0186\nDear Ms. Jarman:\nThis responds to your September 1, 2010 letter regarding packaging requirements for diesel fuel\nunder the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Your questions are\nparaphrased and answered as follows:\nQ1.\nIs it possible for a packaging to be tested and dual-marked as both an Intermediate Bulk\nContainer (IBC) and a portable tank?\nAl.\nThe answer is no. An IBC is defined by the HMR as a rigid or flexible portable packaging,\n(see § 171.8).\nother than a cylinder or specification portable tank, that is designed for mechanical handling\nQ2.\nIf an IBC has not been tested according to the retest requirements set forth in 49 CFR Part\n178, Subpart O, must the UN marking be removed or obliterated to continue to be used?\nA2.\nThe requirements applicable to IBC retesting are set forth in 49 CFR Part 178, Subpart O and\nreference specifically Part 180, Subpart D. As provided by § 173.35, when an IBC is\nidentified as an UN specification container by the specification plate, it must meet the\nspecification and be retested in accordance with Part 180, Subpart D regardless of whether\nthe material is hazardous or not. If an IBC has not been retested, one must obliterate, cover,\nor make illegible the specification identification on the specification plate in order for the\nIBC to continue to be used as a non-specification container without being retested.\nQ3.\nBy removing or obliterating the UN Marking of the IBC, it is our understanding based on\nspecification bulk packaging. Is that correct?\nDOT interpretation Letter Ref. No. 08-0286 that this packaging could be considered a non-\nA3.\nThe answer is yes. The previously issued interpretation (Ref. No. 08-0286) you cite in your\ninquiry remains valid. Because the specification markings are destroyed, removed, or\n\n<<<PAGE 12>>>\n\ncovered, the packaging no longer meets the standards of an IBC in accordance with the\nHMR. The packaging in your scenario is a non-specification bulk packaging.\nQ4.\nIf the answer to Q3 is yes, could this non-specification bulk packaging satisfy the packaging\nfor the transportation of high flashpoint diesel fuel?\nrequirements found in § 173.241, which permits the use of non-specification portable tanks\nA4.\nThe answer is yes. If the specification markings are destroyed, removed, or covered, the\npackaging no longer meets the standards of a specification packaging in accordance with the\na non-specification portable tank. In accordance with § 172.102 special provision B1, a\nHMR. Therefore, the packaging is a non-specification bulk packaging and can be considered\nmaterial with a flash point at or above 38° C (100° F) and below 93° C (200° F) can use the\nbulk packaging requirements in § 173.241, which allow for the use of non-specification\nportable tanks.\nI hope this satisfies your inquiry. Please contact us if we can be of further assistance.\nSincerely,\nI Mean Fest\nT. Glenn Foster\nChief, Regulatory Review and Reinvention\nOffice of Hazardous Materials Standards\n\n<<<PAGE 13>>>\n\nBenedict\n§172.101\n§173.241.\nURS\nBulk Packaging\n10 - 0186\nSeptember 1, 2010\nDirector, Office of Hazardous Materials Standards\nMr. Charles E. Betts\nU.S. DOT/PHMSA (PHH-10)\nWashington, DC 20590\n1200 New Jersey Avenue, SE East Building, 2nd Floor\nDear Mr. Betts:\nI am writing to you with regards to the packaging requirements for diesel fuel under 49 CFR §172.102,\nSpecial Provision B1. Specifically, Special Provision B1 states the following:\n\"If the material has a flash point at or above 38° C (100° F) and below 93° C (200° F), then the bulk\npackaging requirements of §173.241 of this subchapter are applicable.\"\nIn addition to other types of packaging, 49 CFR §173.241 permits the use of non-DOT specification\nportable tanks suitable for the transport of liquids. It also permits the use of various intermediate bulk\ncontainer (IBC) types.\nexcludes portable tanks, however the definition of \"portable tank\" in that same section seems to describe\nPer the definition for \"intermediate bulk container\" found in 49 CFR §172.101, the term specifically\naccessories to facilitate handling of the tank by mechanical means.\"\ntypical IBCs that are used in industry, since many of them are \"equipped with skids, mountings, or\nMy questions are as follows:\n1) Is it possible for a packaging to be tested and dual marked as both an IBC and a portable tank?\n2) If an IBC has not been tested according to the retest requirements set forth in 49 CFR Part 178, Subpart\nO, must the UN marking be removed or obliterated to continue being used?\nBy removing or obliterating the UN marking of the IBC, it is our understanding based on DOI\nbulk packaging. Is that correct?\nInterpretation Letter Ref. # 08-0286 that this packaging would then be considered a non-specificatior\n4) If the answer to Question 3 is YES, could this non-specification bulk packaging satisfy the packaging\ntransportation of high flash point diesel fuel?\nrequirements found in $173.241 which permits the use of non-specification portable tanks for the\nThank you in advance for your assistance. I look forward to your response.\nSincerely,\nErin 2. Jarmar\nEnvironmental Scientist\nErin N. Jarman\nURS Corporation\nMorrisville, NC 27560\n1600 Perimeter Park Drive. Suite 400\nTel: 919-461-1478\nErin_Jarman@urscorp.com","truncated":false,"body_characters":18760}