{"operation":"document","citation":"05-0186","title":"Minnesota Department of Transportation — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2005-08-25","effective_on":null,"summary":"05-0186 response to Minnesota Department of Transportation concerning 171.1, 172.800.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0186.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0186.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0186","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2005/050186.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\n400 Seventh Street, S.W.\nWashington, D.C. 20590\nPipeline and\nAdministration\nHazardous Materials Safety\ni 5\n2005\nMr. Michael Ritchie\nRef. No.: 05-0186\nHazardous Materials Specialist\nMinnesota Department of Transportation\n1110 Centre Pointe Curve\nOffice of Freight and Commercial Vehicle Operations, Mail Stop 420\nMendota Heights, MN 55120-4152\nDear Mr. Ritchie:\nThis is in response to your July 28, 2005 letter regarding carrier requirements and\napplicability of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Your\nquestions are paraphrased and answered as follows:\nQ1.\nUnder the HMR, may a carrier halt a transport vehicle at its facility for the purpose of\ncommercial gain or operational purposes (e.g., waiting for additional cargo to fill a\ntrailer or to accommodate a delayed delivery request by a consignee)?\nAl.\nIn accordance with § 177.800(d) all shipments must be transported without\nunnecessary delay. Delays that are part of normal commercial operations, regulatory\ncompliance, and general safety are not considered \"unnecessary\" delays.\nConsolidating shipments, brief delays to accommodate consignee delivery schedules,\nand compliance with the HMR or other regulations (e.g., the Federal Motor Carrier\nSafety Regulations (FMCSR; 49 CFR Parts 350-399)) are not unnecessary delays.\nQ2.\nIf a driver must rest to comply with FMCSR requirements for hours of service, is this\nan \"unnecessary\" delay?\nA2.\nNo. See Al.\nQ3.\nIf a carrier stores hazardous materials prior to delivery to the consignee is this\nconsidered \"storage incidental to movement\" (e.g., the consignee is unable to accept\nthe shipment and request that the carrier hold the shipment at their facility?\nA3.\nYes. Storage incidental to movement is defined in § 171.8 as storage by any person\nbetween the times that a carrier takes physical possession of the hazardous material\nfor the purpose of transporting it until it is physically delivered to the destination on\nthe shipping document.\n171. 1(8)\n050186\n172.800\n\n<<<PAGE 2>>>\n\nQ4.\nIf a driver stops a transport vehicle containing hazardous materials at a rest area to\nawait instructions from the consignee or a dispatcher is this \"storage incidental to\nmovement?\"\nA4.\nYes. See A3.\nQuestion 5 in your letter pertains to the FMCSR; we have not addressed this question in our\nresponse as it pertains to regulations outside the prevue of this office. It appears that you\nhave already sent a copy of your request to the Federal Motor Carrier Safety\nAdministration's field office in Olympia Fields, Illinois.\nIn your letter, you also express an interest in a preemption determination. You may apply for\napplication may be submitted:\na preemption determination in accordance with 49 CFR Part 107, Subpart C. Your\nBy mail:\nAssociate Administrator for Hazardous Materials Safety\n(Attn: Hazardous Materials Preemption Docket)\nPipeline and Hazardous Materials Safety Administration\nU.S. Department of Transportation\n400 Seventh Street, SW\nWashington, DC 20590-0001\nBy Fax:\nAssociate Administrator for Hazardous Materials Safety (Attn: Hazardous Materials\nPreemption Docket), at 202-366-5713\nI hope this information is helpful. If you have further questions, please do not hesitate to\ncontact this office.\nSincerely,\nChief, Regulatory Review and Reinvention\nOffice of Hazardous Materials Standards\nCc: Mr. Joe DeLorenzo, USDOT/FMCSA, 19900 Governors Drive, Suite 210, Olympia\nFields, IL 60461\n\n<<<PAGE 3>>>\n\n•\nMinnesota Department of Transportation\nMail Stop 420\nOffice of Freight and Commercial Vehicle Operations\nMendota Heights, MN 55120-4152\n1110 Centre Pointe Curve\nFax: 651/405-6082\nTel: 651/405-6060\nPollack\n§191.1(d)\nJuly 28, 2005\n§172.800\nMr. Edward Mazzullo\nUSDOT/PHMSA\nDHM-10\nsecurity anting\n400 Seventh St. S.W.\nWashington, D.C. 20590\n05-0186\nMr. Joe DeLorenzo\nUSDOT/ FMCSA\n19900 Governors Drive\nSuite 210\nOlympia Fields, IL 60461\nGentlemen:\nA county in this state has issued a county ordinance that controls storage, and parking of\ntrucks containing hazardous wastes. The ordinance requires any facility that stores\nhazardous waste on or off a vehicle for more than 24 hours, to obtain a transfer facility\npermit. The county ordinance references State laws and rules, which in turn reference\nUSEPA regulations in 40 CFR 263.12.\nSome of these vehicles require hazmat placarding pursuant to 49 CFR part 172, subpart\nF. Many of the vehicles are in interstate commerce, as the carrier involved indicates they\nregistered with both the USDOT and Mn/DOT as a hazmat carrier. The carrier is\nhaul hazardous waste in 40 states. The carrier has its headquarters in this county. It is\nconcerned with local ordinances like this one around the country. If a vehicle with\nhazardous waste is stopped more than 24 hours, for repairs, to await additional cargo or\nto let a driver catch up on hours of service, they could be required to have local permits to\npark or store hazmat or hazardous waste. They ask if this is consistent with federal law or\nrules.\nStaff from the county and the carrier, have asked for Minnesota DOT's assistance in\nclearing up this matter. In our opinion, this situation calls for interpretation or\nclarification of both the Federal Hazardous Materials Regulations (HM) and the Federal\nMotor Carrier Safety Regulations (FMCSR). I believe this ordinance and its application\nbring up issues that are addressed in the HMR and the FMCSR and so I have addressed\nthis letter to both PHMSA and FMCSA and we are requesting that both administrations\nin the USDOT review and comment. Applicability of USEPA and local environmental\nlaws concerning transport of hazardous waste is an additional issue.\nAn equal opportunity employer\n\n<<<PAGE 4>>>\n\nDEPARTE\nMinnesota Department of Transportation\nMail Stop 420\nOffice of Freight and Commercial Vehicle Operations\n1110 Centre Pointe Curve\nFax: 651/405-6082\nTel: 651/405-6060\n49 CFR MP.800(a9 ales A3inßmenfs of hazardous materials must be transported\nwithout unnecessary delay, from and including the time of commencement of the loading\nof the hazardous materials until its final unloading at destination.\" On March 28, 2002,\nFMCSA issued a bulletin \"HM Issues #2 HM Safety & Security Regulations\" that cited a\nshipment of ammonium nitrate fertilizers that was delivered more than 10 days after it\nwas accepted for shipment as a violation of this section.\n1. What is \"unnecessary delay\" per this regulation? If a hazmat load comes to rest at\nthe carrier facility or other location for business reasons (seeking additional cargo\nto fill the trailer, or because the receiver or consignee can't accept it until a\nspecified date) does this constitute unnecessary delay?\n2. If a hazmat driver stops at a rest area or truck stop for 6 or 8 hours to comply with\nthe hours of service regulations, is this stop an unnecessary delay per 49 CFR\n177.800(d)? If the driver stops for 34 hours pursuant to 49 CFR 395.1 (o) and\n395.3 (c)?\nDocket HM -223 was issued by USDOT as a final rule on October 30, 2003. This\nrulemaking was issued to clarify the applicability of the HMR. In 49 CFR 171.1 (d), it\nidentifies functions not subject to the requirements of the HMR. In the preamble to HM-\n223, on page 61929, it addresses the relationship between EPA and EPA authorized state\nprograms and the HMR and notes that the authority of EPA state authorized program to\nenact requirements that are more stringent than federal requirements is limited in the area\nof hazardous waste transportation. The preamble language also notes that RCRA state\nprograms must be consistent with federal hazmat law and regulations, or they may be\nsubject to preemption.\n3. If a carrier picks up a load of hazardous waste, and brings it to the carrier's\nfacility, while waiting for the consignees OK to deliver, or for drivers to become\navailable, without repackaging the hazmat, is this storage incidental to\ntransportation, or unregulated by the HMR per 171.1 (d)?\n4. If the carrier noted in question 3 is parked and waiting at a highway rest area or at\na truck stop, rather than at the carrier facility, do the same requirements apply?\n5. If the unit is placarded or marked, making the carrier subject to 49 CFR part 397,\narea or truck stop?\ndo the attendance (397.5) and parking (397.7) regulations apply at a highway rest\n6. Can a State or Local government require a carrier with hazardous waste in storage\nincidental to transport, to obtain a local government hazmat or hazardous waste\nstorage or facility permit?\nThank you for your consideration of these issues. Both the carrier and the county have\nindicated a willingness to settle this issue based on your guidance.\nMichael Ritchie\nMinnesota DOT\nHazardous Materials Specialist\nAn equal opportunity employer","truncated":false,"body_characters":8754}