{"operation":"document","citation":"24-0127","title":"Eastman Law — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2025-03-31","effective_on":null,"summary":"24-0127 response to Eastman Law concerning 171.8, 173.4, 173.422, 173.423, 175.700.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-24-0127.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-24-0127.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-24-0127","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2025-04/240127.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nMarch 31, 2025\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nRichard Eastman\nCounselor at Law\nEastman Law\n201 Spear Street, Suite 1100\nSan Francisco, CA 94105\nReference No. 24-0127\nDear Mr. Eastman:\nThis letter is in response to your December 18, 2024 email and subsequent email correspondence\nrequesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180)\napplicable to the transportation of radioactive materials aboard a passenger-carrying aircraft. As\ndescribed in your email, your client would like to offer radioactive material contained inside an\nindustrial gauge that is used to measure the depth and density of pavement materials during road\nconstruction. Specifically, you ask whether this radioactive material described and classified as\n“UN3332, Radioactive material, Type A package, special form non fissile or fissile-excepted, 7”\nmay be transported on a passenger-carrying aircraft.\nNo. Except as provided in §§ 173.4a, 173.422 and 173.423, a Type A package may only be\ncarried on a passenger-carrying aircraft if it is intended for use in, or incident to, “research” as\ndefined in § 171.8,1 medical diagnosis, or treatment—see § 175.700(a). The measurement of\npavement material during road construction is an industrial activity and is not considered\nresearch, medical diagnosis, or treatment for purposes of the HMR. Additionally, your package\ndoes not appear to meet the exceptions in §§ 173.4a, 173.422, and 173.423. Therefore, this\nmaterial is not permitted for transportation on a passenger-carrying aircraft.\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\n1 Research means investigation or experimentation aimed at the discovery of new theories or laws and the discovery\nand interpretation of facts or revision of accepted theories or laws in the light of new facts. Research does not\ninclude the application of existing technology to industrial endeavors.\n\n<<<PAGE 2>>>\n\nPatrick\n24-0127\nFrom: INFOCNTR (PHMSA)\nTo: Dodd, Alice (PHMSA)\nCc: Hazmat Interps\nSubject: FW: Question re 49 CFR 175.75 and 49 175.700\nDate: Thursday, December 19, 2024 4:19:23 PM\nHi Alice,\nPlease see the below interpretation request and the supporting attachments.\nLet me know if you need anything,\n-Breanna\nFrom: richard.eastman@eastmanlawsf.com <richard.eastman@eastmanlawsf.com>\nSent: Wednesday, December 18, 2024 2:18 PM\nTo: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>\nCc: PHMSA HM InfoCenter <PHMSAHMInfoCenter@dot.gov>\nSubject: Question re 49 CFR 175.75 and 49 175.700\nYou don't often get email from richard.eastman@eastmanlawsf.com. Learn why this is important\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.\nLadies and gentlemen\nI have a question of interpretation of 49 CFR 175.75 (b) (2) and 49 175.700 (c) which I just\ndiscussed with Breanna by telephone.\nFor background, the specific item which gives rise to the question is a nuclear gauge,\ndetails of which are:\nRQ, UN3332, Radioactive Materials TYPE A\nPackage Special Form, 7,\nNon-Fissile or Fissile Excepted,\nCesium-137 0.37GBq(10 mCi); Americium-241/Beryllium 1.48GBq(40mCi)\nYELLOW II TRANSPORT INDEX -- 0.2\nFor shipment, the gauge would be contained in a packing case provided by the\nmanufacturer Hamilton. See attached photo.\nThe gauge is only one of several stranded on the island of Guam because no carrier will\naccept them for shipment to the United States (or anyplace else for that matter). My client\nhas been trying to ship it out since 2019.\n49 CFR 175 (b) (2) reads:\n(2) Hazardous materials may be carried in a main deck cargo compartment of a\n\n<<<PAGE 3>>>\n\npassenger aircraft provided that the compartment is inaccessible to passengers and\nthat it meets all certification requirements for: a Class B aircraft cargo compartment\nin 14 CFR 25.857(b); or a Class C aircraft cargo compartment in 14 CFR 25.857(c).\n49 CFR 175.700 © reads:\n(c) For each package containing a hazardous material acceptable for carriage\naboard passenger-carrying aircraft, no more than 25 kg (55 pounds) net weight of\nhazardous material may be loaded in an inaccessible manner. In addition to the 25\nkg limitation, an additional 75 kg (165 pounds) net weight of Division 2.2 (non-\nflammable compressed gas) may be loaded in an inaccessible manner. The\nrequirements of this paragraph (c) do not apply to Class 9, articles of Identification\nNumbers UN0012, UN0014, or UN0055 also meeting the requirements of §\n173.63(b) of this subchapter, articles of Identification Numbers UN3528 or UN3529,\nand Limited or Excepted Quantity material.\nIn my conversation with Breanna, she pointed out to me 49 CFR 175.75 (b) (1), which\nreads\n1. Except as otherwise provided in this subchapter, no person may carry a\nhazardous material in the cabin of a passenger-carrying aircraft or on the flight\ndeck of any aircraft, and the hazardous material must be located in a place that is\ninaccessible to persons other than crew members.\nHowever that section specifically applies only to the cabin and flight deck, not to cargo\nareas. I believe she also mentioned the latter part of 49 CFR 175.75 (b)(2). 14 CFR\n25.857(b) and (c). These appear to set standards for the relevant cargo areas of aircraft. I\nconfess I have not looked into that aspect. I had assumed most airline cargo areas would\nmeet the standard. The only scheduled air carrier providing non-stop service between\nGuam and the United States is United Airlines.\nIt seems to me that read as a whole, the regulations mentioned above seem to mean that\nthe gauge in question can be carried in the cargo deck of United Airline flights from Guam\nto Hawaii. However, as I mentioned to Breanna, a broker whom I have consulted\ndisagrees, and he should know. In any event, I will appreciate confirmation of DOT’s\ninterpretation.\nI thank you for your attention and look forward to hearing from you.\nDick Eastman\nRichard A. Eastman\nCounselor at Law\n201 Spear Street, Suite 1100\nSan Francisco CA 94105\nCell 1-415-994-1759\nWebsite eastmanlawsf.com","truncated":false,"body_characters":6340}