Interpretation Response #23-0003
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
August 28, 2023
Attn: Cpt. Battenhouse
Denver Fire Department
745 W. Colfax Ave
Denver, CO 80204
Reference No. 23-0003
Dear Mr. Bartlett:
This letter is in response to your January 17, 2023, email requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the maintenance of Department of Transportation (DOT) specification cylinders and tanks stored for use on site (i.e., stationary containers). You state that the cylinders and tanks are not placed into transportation in commerce and are periodically refilled onsite. It is your understanding that the refilling of DOT specification marked cylinders and tanks places them “in commerce” making them subject to the HMR.
Your understanding is not correct. The refilling of a DOT specification marked cylinder or tank used as a stationary container does not place the container "in commerce" for purposes of the HMR. The HMR applies to persons who offer hazardous material for transportation or transport hazardous material in commerce and who perform or are responsible for performing a pre-transportation function. Pre-transportation functions, such as filling, are performed in advance to prepare hazardous materials for transportation. Refilling a container intended to remain onsite (i.e., not be transported) would not be considered performance of a pre-transportation function.
We have further paraphrased and answered your specific questions as follows:
Q1. You ask whether a stationary set of DOT specification cylinders that are stored onsite and periodically refilled by a third party are subject to the HMR.
A1. The answer is it depends. The use of the cylinders is not subject to the HMR. However, if the cylinders are represented as meeting the requirements of the HMR, they are subject to certain requirements of the HMR. In accordance with § 171.2(g), representing a packaging (i.e., a container) as meeting the requirements of the HMR governing its use in transportation is prohibited unless it meets applicable requirements whether or not the container is used or is to be used for the transportation of a hazardous material.
Therefore, if the container is not maintained or qualified for use in transportation, the DOT specification marking must be covered or obliterated.
Q2. You ask whether the maximum filling requirements listed in § 173.304a(a)(2) are applicable to stationary cylinder systems installed in a building and refilled by a third party.
A2. The answer is no. Cylinders that are filled and used at a private work-site and not offered for transportation in commerce are not directly regulated under the HMR, but in fact come under the jurisdiction of Occupation Safety and Health Administration (OSHA) Standards. It should be noted that based on 29 CFR § 1910.101, if the owner of the cylinder wishes to fill and continue to use the DOT specification cylinder but does not wish to requalify the cylinder as a DOT specification cylinder, they must cover or obliterate any DOT specification markings even when used entirely on private property.
Q3. You ask whether the recertification (i.e., the requalification) requirements in 49 CFR Part 180 are applicable to stationary cylinder systems installed in a building and refilled by a third party.
A3. The answer is yes, if the cylinders are represented as meeting the requirements of the HMR. Section 180.3(a) states no person may represent a packaging, such as a cylinder, as meeting the requirements of Part 180 whether or not it is intended to be used for the transportation of a hazardous material. If the owner of the DOT specification cylinder wishes to continue to use the cylinder but does not wish to re-qualify the cylinder as a DOT specification cylinder, the owner must cover or obliterate any DOT specification markings.
I hope this information is helpful. Please contact us if we can be of further assistance.
Dirk Der Kinderen
Chief, Standards Development Branch
Standards and Rulemaking Division
171.2(g), 173.304a(a)(2), 180, 180.3(a)