{"operation":"document","citation":"98-0308","title":"United Parcel Service — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1998-11-03","effective_on":null,"summary":"98-0308 response to United Parcel Service concerning 173.220.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-98-0308.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-98-0308.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-98-0308","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/1998/980308.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nWashington, D.O.\n400 Seventh Street, S.W.\n20590\npecial Program\nesearch and\nAdministration\nNOV • 3 1998\nMr. Samuel S. Elkind\nRef. No. 98-0308\nAir Dangerous Goods\nUnited Parcel Service\n1400 North Hurstbourne Parkway\nLouisville. KY 40223\nDear Mr. Elkind:\nThis is in response to your letter of October 9, 1998, regarding the transportation of a generator under\nthe Hazardous Materials Regulations (HMR; 49 CFR parts 171-180). Specifically you state that the\ngenerator is described as \"Engines, internal combustion, 9, UN3166\" and request clarification on the\nprovisions of 49 CFR 173.220.\nAs provided by § 173.220(a), an internal combustion engine or fuel tank which contains any amount\n(including residue) of a flammable liquid or gaseous fuel is subject to the HMR. For transportation by\naircraft, up to 500 ml (17 ounces) of fuel may remain in engines and fuel lines provided the lines are\nsecurely closed to prevent leakage of fuel. Air shipments are subject to shipping paper requirements\nbut are excepted from marking, labeling, placarding and emergency response information requirements.\nFor transportation by motor vehicle or rail car,fuel may remain in engines and tanks provided the fuel\ntanks are securely closed. Shipments by motor vehicle or rail car are not subject to any other\nrequirements of the HMR if no other hazardous materials are packaged with the generator. (See\n§ 173.220(b) and (g).)\nI hope this satisfies your inquiry.\nSincerely,\nDuhm 7 Billio.\nDelmer F. Billings\nChief, Standards Development\nOffice of Hazardous Materials Standards\n\n<<<PAGE 2>>>\n\nLavalle\n$173.220\nUpS\nUnited Parcel Service\n1400 North Hurstbourne Parkway, Louisville, KY 40223\n(502) 329-3000\n98-0308\nOctober 9, 1998\nMr. Edward T. Mazzullo\nDirector, office of Hazardous Materials Standards\nResearch & Special Program Administration\n400 Seventh Street, SW\nWashington, DC 20590\nRe: Engines, Internal Combustion - 49 CFR 173.220\nDear Mr. Mazzullo:\nBy letter dated October 8, 1998 to Bill Wilkening of FAA, we sought an emergency\nxemption to except from the Hazardous Materials Regulations generators powered b\nnternal combustion engines that are being shipped to the island of Puerto Rico. Th\nexemption has been sought to support the humanitarian relief effort in the aftermath of\nthe hurricane.\nThe entire experience involving these generators has underscored the powerful need for a\ndefinitive statement in the HMR of when an internal combustion engine is or is not\nregulated. While there are some proposed amendments contained in Docket HM-215C,\nwe would respectfully suggest that those proposed amendments do not provide the\ndefinitive guidance needed by carriers and the shipping public. Sorely needed is a\nsimple, commonsense statement of the point at which engines, such as those used to\npower generators, chainsaws, and similar common devices, become subject to the HMR.\nTo indicate the extremity of the need for clear definition of the point at which internal\ncombustion engines become regulated, please allow me to review the events, and the\nsuccession of conflicting statements, that we have been through:\nUPS shipments of \"new\" generators were being handled as unregulated packages\nthrough our air service with few questions, until a major manufacturer sought to ship\nan aircraft pallet containing such generators, each displaying a Class 9 label. This\nmanufacturer indicated that due to their factory testing of each generator, they offered\nthem to other carriers as \"Engines, internal combustion, 9, UN3166.\" Their factory\ntesting did not put fuel in their tanks, but did introduce fuel to the fuel system, and the\nmanufacturer assigned this classification due to residue remaining in the devices.\nCOUSC 330\n\n<<<PAGE 3>>>\n\nMr. Edward T. Mazzullo\nPage 2\n• In view of that information, we determined that the status of any generator sought to\nbe shipped at an air service level, by any customer, needed to be established. It\nbecame the UPS position that the only generators that could be shipped by air are\nthose for which a letter could be provided, from the manufacturer, stating that the\ngenerators never contained fuel, and were free from residue (i.e., had never been\ntested). Recall that your office has advised the public that \"a carrier knowingly\nviolates the HMR when the carrier accepts or transports a hazardous material with\nactual or constructive knowledge that a package contains a hazardous material that\nhas not been packaged, marked, labeled, and described on a shipping paper as\nrequired by the HMR\" (63 FR 30412). By seeking such a letter, UPS has sought to\navoid the charge that it had either actual or constructive knowledge that a generator\nwas a hazardous material.\n• In conversations with Del Billings of your office, and Bill Wilkening and Beth Romo,\nof FAA's Dangerous Goods and Cargo Security Office, this approach to generators\nwas not challenged.\n• Comments related to us by FAA representatives indicated that some RSPA staff were\nof the opinion that these devices are unregulated if their fuel tanks had been emptied,\nor if they contain less than 17 ounces of fuel.\n• Today, an irate customer, offended by our approach to the problem, contacted Diane\nLaValle of your office, and in a conference call with a technician at the UPS\nHazardous Materials Support Center (HMSC), held a conversation about these\ngenerators. In part, the customer was disturbed because a letter from the retail store\nthat sold the specific generator, stating that it had never contained fuel and was free\nfrom residue, had been sent to a UPS hub. Unfortunately, her package was not at the\nfor return.\nhub on the date her letter was sent; it had already been placed in the ground system\nMore interesting was Ms. LaValle's contention in this conversation that the generator\nwas not a regulated hazardous material. When informed by the HMSC technician that\nthe specific manufacturer of the generator had been contacted by UPS, and that this\ncompany reported that all generators are tested to verify the RPMs attained by their\nengines, Ms. LaValle then stated that the devices would be misclassified if assigned\nto Class 9; that they would properly be assigned to Class 3 because of their flammable\nliquid residue. Note the two obvious sets of conflicts (1) between the information in\nthe letter procured by this customer (i.e., never run and free from residue), and the\ninformation provided over the telephone by the manufacturer of the generator (i.e.,\n' In the UPS small package system, we accept dangerous goods prepared according to 49 CFR and eligible\nfor carriage by passenger aircraft, to enable us to load dangerous goods shipments in inaccessible positions\non our aircraft. Under 49 CFR,\ncarrying aircraft and are therefore forbidden in the UPS Air Dangerous Goods service.\n\"Engines, internal combustion\" are not permitted aboard passenger-\n\n<<<PAGE 4>>>\n\nMr. Edward T. Mazzullo\nPage 3\nfactory tested, therefore containing residue); and also (2) between the classification\nassigned to Class 3.\nguidance of 49 CFR 173.220, and Ms. LaValle's statements that such engines must be\nIt is perhaps obvious to state that, on the subject of shipping internal combustion engines\nby air, confusion reigns. The content of §173.220 (in either current or proposed form)\nonly contributes to this confusion.\nLet me highlight some of the sources of confusion, using the proposed text as my\nreference. The applicability of this section is vague because it has no lower threshold\nbelow which an internal combustion engine might be unregulated.\n(a) Applicability. An internal combustion engine, self-propelled vehicle, or mechanized\nequipment is subject to the requirements of this subchapter when transported as cargo\non a transport vehicle, vessel or aircraft if -\n(1) The engine or fuel tank contains a flammable liquid or gaseous fuel....\n***\nrequirements of this subchapter as follows:\n(b) Flammable liquid fuel. Engines and flammable liquid fuel tanks are subject to the\nthan 500 ml (17 ounces) of fuel in engine components and fuel lines, it is subject to all\n(1) If an engine or flammable liquid fuel tank is not completely drained or has more\napplicable requirements of this subchapter.\n(2) If an engine or flammable liquid fuel tank is drained and has no more than 500 ml\n(17 ounces) of fuel in engine components and fuel lines, it is subject to certain\nexceptions are limited to marking, labeling, and an emergency response telephone\nexceptions listed in paragraph (g) (2) of this section. For transportation by aircraft, these\nnumber. The shipment is still subject to all other applicable requirements of this\npilot-in-command, and general packaging requirements and the requirements specifiec\nsubchapter, such as shipping papers, emergency response information, notification of\nNote that the proposed §173.220 text perpetuates a lack of clarity in its speaking of\ncomponents and fuel lines.\" The fact that when such engines are manufactured they are\nalning an engine while at the same time permitting fuel to remain in \"engine\nfactory tested means that a residue is present in the engine, if not in the fuel tank, and by\nthe only avallable standard, $173.29, they would therefore appear to be regulated unless\n\"sufficiently cleaned of residue and purged of vapors to remove any potential hazard\"\n($173.29(b)(2)(ii). In a commonsense world of shippers who have widely varying\ndegrees of knowledge and experience, this standard is impossible to apply in the\nacceptance of this kind of cargo.\n\n<<<PAGE 5>>>\n\nMr. Edward T. Mazzullo\nPage 4\nFor this reason, I strongly encourage your office, either through regulation or separate\ninterpretation, to state clearly, in terms that can be understood by the general public, the\npoint at which an internal combustion engine becomes unregulated. For example, is it\nunregulated --\n1. Only if it has never contained fuel, not even for a factory test? This is the standard\nwe have sought to enforce, clearly with difficulty.\n2. If it has been factory tested, but the fuel tank never filled? If so, then a new unit in its\nbox would not appear to be subject to the HMR.\n3. If it has been used but drained as far as practicable? If so, then it could be used,\ndrained in good faith effort by its user, and sent without concern for the regulations.\n4. If it has been used but drained as far as practicable and run to starvation? This would\nbe much like choice 2 above, but would reduce residue present in the device.\n5. If it has been used, but drained as far as practicable and run to starvation, and then\npurged of vapors to remove any potential hazard (e.g., by air blown through the\nsystem or a similar means)? This would be a hard level to enforce for an accepting\ncarrier but would at least be definitive.\nIn the case of choices 3 and 4, there is a higher probability of fumes and even small leaks\ncausing the packages to be stopped and possibly returned to the customer or reported as a\ndiscrepancy under §175.31. The possible presence of fumes or small leaks from packages\ncarried aboard aircraft may introduce safety concerns as well, and we would naturally\ndefer to your agency in analyzing the risk posed by such leaks. In any case, there is a\nneed to establish a clear, simple statement of the distinction between regulated and\nunregulated internal combustion engines.\nIt you wish to discuss these issues with me, please feel free to contact (502) 359-1891 or\nby internet e-mail at \"air1sse@air.ups.com.\" As always, I very much appreciate your\ntime and assistance in this matter.\nSincerely,\nSamuel S. Elkind\nAir Dangerous Goods\nCC:\nFrank J. Black, ATA","truncated":false,"body_characters":11641}