Proper Nitrox ID

[FM1520]

Yea, I read post 16 and 20. Looks like the CFR is addressing transportation of a hazardous material in commerce. Doesn't seem like it would apply to a shop filling a scuba tank for an individual.

 

[Dr. Lecter]

Yea, I read post 16 and 20. Looks like the CFR is addressing transportation of a hazardous material in commerce. Doesn't seem like it would apply to a shop filling a scuba tank for an individual.

It clearly doesn't cover personal transportation of scuba tanks, but whether it covers filling by a business for an individual is a tougher question. On the one hand, 49 CFR 171.1(b) says "Requirements in the HMR apply to each person who . . . is responsible for performing a pre-transportation function" and those include "(3) Filling a hazardous materials packaging . . ."

On the other hand, it's not clear it can be a pre-transportation function when it's neither transported in commerce immediately before nor after the fuction occurs (i.e., private transport to and from fill location).

And it's also unclear whether the definitions in 49 CFR 171.8 support a reading of "filling a hazardous materials packaging" as including filling a scuba cylinder. Neither "Hazardous materials packaging" nor "material(s)" are expressly defined. "Cylinder" is defined separately from packaging, does not reference packaging in the definition of cylinder, and uses the term "a pressure vessel." In contrast, "Packaging" speaks of "a receptacle and any other components or materials necessary for the receptacle to perform its containment function in comformance with the minimum packing requirements of this subchapter." However, "Receptacle" is separately defined from "Cylinder" and means "a containment vessel for receiving and holding materials, including any means of closing." And the subpart dealing with "Packaging" (49 CFR 173) contains the regulations for gas cylinders.

So at the end of the day, filling a scuba tank is probably "Filling a hazardous materials packaging." The only question left is whether you can wrench that out of context and say it covers anybody who fills a hazardous materials packaging, whether or not it's actually a pre-transport in commerce situation. If yes, you get the absurd result that the requirements apply to private individuals filling a tank outside of a commercial transaction, but don't apply to the same persons transporting the tank in a private motor vehicle outside of commerce.

Thus, the answer is probably not -- it has to be a tank being filled before it will be transported in commerce. Filling a tank for someone who will transport it as part of their business (e.g., a dive shop) requires that you follow the HMR. Filling the same tank for a private individual does not trigger the same requirements.

 

[FM1520]

I agree with your logic. I don't agree with other's insinuation that dive shops are "getting away" with something. I have to get one of my tanks filled tomorrow (Saturday) and I'll ask the shop owner what regulations he references in filling tanks. They fill everything from air to 100% and do most of the hydros in the area.

 

[Dr. Lecter]

One interesting point is that the labeling requirements in 49 CFR 172 only apply to a "person who offers a hazardous material for transportation" or a "carrier by air, highway, rail, or water who transports a hazardous material." 49 CFR 172.3(a). Ditto the O2 cleaning requirements for AL cylinders in 49 CFR 173.302(b), which only apply to cylinders "offered for transportation." 49 CFR 173.301(a) and 173.302(a).

However, 49 CFR 171.1, which governs to whom the entire HMR can apply, speaks of its applicability being the limited context of "transportation of a hazardous material in commerce" and specifically exempts "Transportation of a hazardous material by an individual for non-commercial purposes in a private motor vehicle." And "carrier" is defined in the HMR as being limited to transport "in commerce":" Carrier means a person who transports passengers or property in commerce by rail car, aircraft, motor vehicle, or vessel." 49 CFR 171.8.

The wrinkle is that "transportation" as defined in the HMR does not get limited to that which occurs "in commerce": "Transportation or transport means the movement of property and loading, unloading, or storage incidental to that movement." 49 CFR 171.8. So there's an argument that the labeling and cleaning requirements of the HMR apply even without there being transport in commerce, like when you go to drop your tank off for filling or pick it up from filling.

Still, it's ultimately a bad argument because of the breadth of 49 CFR 171.1(d)(6): "Functions not subject to the requirements of the HMR. The following are examples of activities to which the HMR do not apply: Transportation of a hazardous material by an individual for non-commercial purposes in a private motor vehicle, including a leased or rented motor vehicle." Taking that statement, which exempts a type of "transportation," and looking at labeling/cleaning requirement sections that say they apply when "offered for transportation"...it's pretty clear that nothing in the HMR applies to anything in connection with private, non-commercial transportation.

Not that any of this statutory parsing really matters, of course, because no shop in its right mind will fill things with O2 without knowing they're clean

 

[Scared Silly]

Unfortunately shops are getting away with things. Especially when it comes anything that has to do with scuba cylinders. The visual inspection process is one example, another is AL6351 cylinders. The dive industry seems to like to make up the rules as they go along. The CFRs aside look at what the standard of care is for O2 handling outside of the scuba industry. The CGA as an example gives 23.5% as a limit. The CGA has been around longer than scuba and hands down has a much better of track record of promulgating standards than the scuba industry ever will.

When you go into your shop ask the owner about their liability insurance. Ask them about clauses that state they will follow industry standards and what might happen if they do not. Insurance companies like to have reasons not to cover a policy.

Regarding the VIP - in the scuba industry there are two classes of VIPs. One that says a scuba cylinder is suitable for air only. The other states that the cylinder is O2 clean and suitable for mixtures containing oxygen greater than 21%. I have never seen one that states "banked NITROX only" Not saying they are not out there but that there is no standard for such an inspection.

 

[Dr. Lecter]

Unfortunately shops are getting away with things. Especially when it comes anything that has to do with scuba cylinders. The visual inspection process is one example, another is AL6351 cylinders. The dive industry seems to like to make up the rules as they go along. The CFRs aside look at what the standard of care is for O2 handling outside of the scuba industry. The CGA as an example gives 23.5% as a limit. The CGA has been around longer than scuba and hands down has a much better of track record of promulgating standards than the scuba industry ever will.

When you go into your shop ask the owner about their liability insurance. Ask them about clauses that state they will follow industry standards and what might happen if they do not. Insurance companies like to have reasons not to cover a policy.

Regarding the VIP - in the scuba industry there are two classes of VIPs. One that says a scuba cylinder is suitable for air only. The other states that the cylinder is O2 clean and suitable for mixtures containing oxygen greater than 21%. I have never seen one that states "banked NITROX only" Not saying they are not out there but that there is no standard for such an inspection.

Feel free to point me towards the part of the CFR that defines "oxygen" as "any gas mixture over 21%/23.5%" -- I looked earlier today but didn't find a definition of "oxygen" in the CFR.

Note that CGA is not an industry standard for the diving business; it's mission statement and scope of activities both expressly limit their relevance to "industrial and medical gases." Commercial SCUBA fills/tanks are neither.

 

[Scared Silly]

Feel free to point me towards the part of the CFR that defines "oxygen" as "any gas mixture over 21%/23.5%" -- I looked earlier today but didn't find a definition of "oxygen" in the CFR.

Note that CGA is not an industry standard for the diving business; it's mission statement and scope of activities both expressly limit their relevance to "industrial and medical gases." Commercial SCUBA fills/tanks are neither.

I said put the CFR and look at industrial standards. As for CGA not being a standard within the scuba industry. Sorry I disagree, the process of producing a compressed gas in any form is an industrial process. Feel to disagree but open a shop and talk with the insurance underwriter and have them make a decision as to what needs to do be done assure that coverage will be afforded for any type of industrial accident.

A good example is when a scuba instructor does not follow standards, guess what happens to them? Their agency indirectly ends up being a witness for the plaintiff.


BTW look up the definition of commerce in 49CFR171.8

Commerce means trade or transportation in the jurisdiction of the United States within a single state;

Trade means the process of buying or selling. Which is what happens when one pays for a cylinder to be filled. Now go back a reread the different CFRs.


That said I am done here, these discussions come up ad nauseum and are like wrestling with a pig.

In the mean time here is some reading fodder:

http://www.si.edu/dive/pdfs/proceedings_DANnitrox.pdf

 

[FM1520]

Regarding the VIP - in the scuba industry there are two classes of VIPs. One that says a scuba cylinder is suitable for air only. The other states that the cylinder is O2 clean and suitable for mixtures containing oxygen greater than 21%. I have never seen one that states "banked NITROX only" Not saying they are not out there but that there is no standard for such an inspection.

Thats just not true at least not around here in San Diego. The sticker states that the tank is cleaned for pure O2. Why would anyone require special cleaning for banked NITROX? Are you saying there is safety risk? BCDs/wings/drysuits are not specially cleaned and they get "banked NITROX".

As for this thread, I enjoy the discussion. I find it interesting to hear other opinions and observations around the SCUBA industry.

 

[Scared Silly]

Thats just not true at least not around here in San Diego. The sticker states that the tank is cleaned for pure O2.

Scan the stickers and post them up.

Why would anyone require special cleaning for banked NITROX? Are you saying there is safety risk? BCDs/wings/drysuits are not specially cleaned and they get "banked NITROX".

Yes, there is a safety risk even with banked NITROX. Also with BCDs/wings/drysuits the pressures are < 150 psi. which makes a difference.

 

[NAM001]

Yea however in previously discussions many mentioned that as long as it was related to comerce it applied. Ie a shop hauling tanks to a dive site. If related to a checkout dive or course it was commercial and if it was just hauling tanks for a pleasure dive it didnt. there are too many references and too many aspects of the many interpretations. Once again i dont know who knows the right answer. As i see it i am an individual, and can move tanks all over with ourt a problem unless i have too many or am being paid to mover or moving for a commercial event.

As far as the o2 thing goes it was explained to me that anything over 23.5% o2 > 50 psi was the standard for o2 cleaning. I dont know a shop that can say they can claim to comply with that. I have seen a couple but that is it. (completely seperate air and enriched systems).

Yea, I read post 16 and 20. Looks like the CFR is addressing transportation of a hazardous material in commerce. Doesn't seem like it would apply to a shop filling a scuba tank for an individual.

---------- Post added November 23rd, 2013 at 01:28 PM ----------

None of those items exceed 50 psi.

Scan the stickers and post them up.



Yes, there is a safety risk even with banked NITROX. Also with BCDs/wings/drysuits the pressures are < 150 psi. which makes a difference.