{"operation":"document","citation":"99-0225","title":"HAZMATEAM, INC. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1999-09-29","effective_on":null,"summary":"99-0225 response to HAZMATEAM, INC. concerning 171.1.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-99-0225.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-99-0225.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-99-0225","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/1999/990225.pdf","body":"<<<PAGE 1>>>\n\nof Transportation\nJ.S. Department\n400 Seventh Street, S.W\nWashington, D.C.\n20590\nResearch and\nSpecial Programs\nAdministration\nSEP 2 9 1999\nMr. Leo Traverse\nRef. No. 99-0225\nHAZMATEAM, INC.\n12 Kimball Hill Road\nHudson, NH 03051-39155\nDear Mr. Traverse:\nThis is in response to your letter dated August 20, 1999, concerning the meaning of the plus (+) sign in\nColumn 1 of the Hazardous Materials Table (HMT) under the Hazardous Materials Regulations\n(HIMR; 49 CFR Parts 171-180). Specifically, you ask if the appearance of a plus (+) sign is an\nindication that the proper shipping name may not be changed, even if the material is in a mixture.\nThe plus (+) sign in Column 1 of the HMT fixes the proper shipping name and hazard class for certain\nmaterials without regard to whether the material meets the hazard class shown in column 3 of the HMT.\nHowever, this applies only to materials which are essentially pure, or of a technical grade. The plus (+)\ni sign eliminates shipper discretion in determining whether a material meets the defining criteria for a\nhazard class. The proper shipping name is no longer fixed if the hazardous material is mixed with\nanother hazardous material or a substantial amount of a non-hazardous material. The plus (+) sign is no\nlonger considered when the mixture or solution no longer exhibits the same hazard to humans as the\ntechnical or essentially pure grade of the material. In that case, the most appropriate description for the\nmaterial shall be determined in accordance with § 172.101(c)(12).\nI hope this information is helpful. If you have further questions, please do not hesitate to contact this\nOffice.\nSincerely,\nmn Ballins\nDelmer F. Billings\nChief, Standards Development\nOffice of Hazardous Materials Standards\n990225\n\n<<<PAGE 2>>>\n\nOffice of\nThe General Counsel\nThe Boeing Company\nSeattle, WA 98124-2207\nP.O. Box 3707, MC 13-08\nMATHEW FRANK\nJohnsen\nJuly 23, 1999\n171.1\n99-0202\nEdward T. Mazzullo\nDirector, Office of Hazardous Materials Standards\nU.S. Department of Transportation\nResearch and Special Programs Administration\nDHM-10\n400 Seventh Street, S. W.\nBOEING\nWashington, D. C. 20590-0001\nRe:\nDOT Interpretation of Transportation \"in Commerce\" by a Government\nContractor at a Privately-Owned Facility (i.e., not Government-Owned or\nGovernment-Operated)\nDear Sir:\nI am seeking concurrence from the Department of Transportation (\"DOT\") that\nthe intra-plant movement of hazardous materials by a government contractor at its\nown privately owned facility does not constitute \"transportation in commerce\"\nand thus, would not be subject to the hazardous materials regulations (\"HMR\")\nANALYSIS:\nAs a general rule, the intra-plant movement of hazardous materials exclusively on\nprivately-owned property does not constitute \"transportation in commerce\" for\npurposes of the applicability of the HMR. Such exclusively intra-plant movement\nwould not be subject to the various packaging, shipping paper, and placarding\nrequirements of the HMR.\nThe movement of hazardous materials by a consignee exclusively on\nprivate property, for purposes relating to a manufacturing process, is not\ntransportation in commerce under Federal hazmat law.\nSee 60 Fed. Reg. at 8,787 (Feb. 15, 1995) (Attachment 1). See also 60 Fed. Reg.\nat 8,777 and 8,784 (stating that the \"Federal hazmat law and the HMR do no\napply to the movement of hazardous materials exclusively at a consignce's\nfacility\" and \"Federal hazmat law and the HMR do not apply to transportation of\nhazardous materials exclusively on private property, \" respectively.) (Attachment\n2).!\nThere are a few exceptions to this general proposition not relevant to the question being posed\n732204.225/mag\n- 1-\n\n<<<PAGE 3>>>\n\nThe determinative factor in the applicability of the HMR is the status of the\nfacility, and not the status of the operator. That is, so long as the transportation of\nhazardous materials is solely intra-facility (i.e., not along or across a public road\nnor at a government-owned/leased facility which is open to the public?) at a\nprivately owned facility, the requirements of the HMR do not apply. Thus, when\na government contractor is operating exclusively at its own privately-owned\nfacility, the government contractor is treated no differently than any other person\nsubject to the HMR. The intra-plant movement of hazardous materials at the\ngovernment contractor-owned facility is not considered to be \"in commerce\" and\nBOEING\nlaw and regulations which require that government contractors be treated \"in the\nthe HIMR does not apply. This is consistent with the general Hazardous Materials\nsame way and to the same extent\" as any other person subject to the HMR\nrequirements. See 49 U.S.C. 5126(a); 40 Fed. Reg. at 8,620 (Feb. 28, 1991)\n(Attachment 3) and 49 C.F.R. 171.1(b).\nCONCLUSION\nThe HMR does not apply to the movement of hazardous materials that is entirely\non private property and neither follows nor crosses a public way, regardless of\nwhether the movement involves a private company operating at its own privately-\nConfron\nowned facility or whether it involves a government. contractor that is operating at\ntuis\nits privately-owned facility.\nI look forward to your concurrence. In the meantime, if you have any questions\nfor your attention to this matter.\nabout the contents of my letter, please contact me at (206) 544-3198. Thank you\nSincerely,-\nmosluisiana\nMichele A. Giusiana\nCounsel, The Boeing Company\nEncls.\ntank cars, incidental to transportation in commerce, even when that unloading takes place\nexclusively at a consignee's facility).\n2 See, e.g. DOT Legal Opinion Letter from Judith S. Kaleta, Chief Counsel, RSPA, U.S. DOT to\nSusan Denny, Director, Transportation Management Program, U. S. DOE (April 23, 1991)\n(Attachment 4); DOT Legal Opinion from Edward H. Bonekemper, III, Assistant Chief Counsel,\nRSPA, U. S. DOT to Jo Ann Williams, Office of the General Counsel, U. S. DOE (April 26, 1993)\n732204.225/mag\n- 2-","truncated":false,"body_characters":5953}