{"operation":"document","citation":"05-0187","title":"Steptoe & Johnson, LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2005-09-07","effective_on":null,"summary":"05-0187 response to Steptoe & Johnson, LLP concerning 171.8.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0187.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0187.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0187","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2005/050187.pdf","body":"<<<PAGE 1>>>\n\nJ.S. Department\nSEP\n7 2005\nof Transportatior\nWashington, D.C. 20590\n400 Seventh Street, S.W\nPipeline and\nAdministration\nHazardous Materials Safety\nDavid H. Coburn, Esq.\nReference No.: 05-0187\nAttorney for Georgia-Pacific Corp.\nSteptoe & Johnson, LLP\n1330 Connecticut Avenue, N.W.\nWashington, DC 20036-3000\nDear Mr. Coburn:\nThis responds to your letter requesting clarification of the term \"unloading incidental to\nmovement\" in § 171.8 of the Hazardous Materials Regulations (HMR; 49 CFR. Parts 171-180)\non behalf of your client, Georgia-Pacific Corporation. Specifically, you ask whether\nunloading of bulk or other hazardous materials while the power unit is still attached to the\ntransport vehicle and the driver of the motor vehicle being unloaded is at the same facility\n\"unloading incidental to movement.\"\nwhere the unloading occurs, but is not present at the actual site of the unloading, constitutes\nThe answer is no. Section 171.8 defines \"unloading incidental to movement\" to mean\n\"removing a packaged or containerized hazardous material from a transport vehicle, aircraft,\nor vessel or, for a bulk packaging, emptying a hazardous material from the bulk packaging\nafter the hazardous material has been delivered to the consignee and prior to the delivery\ncarrier's departure from the consignee's facility or premises, or, in the case of a private motor\ncarrier, while the driver of the motor vehicle from which the hazardous material is being\nunloaded immediately after movement is completed is present during the unloading\noperation.\" We do not consider a driver to be \"present\" when he is in the facility where\nunloading operations are performed but is not at the actual unloading site where he can\nobserve the unloading process. Hence, such unloading is not. \"incidental to movement.\"\nI trust this satisfies your inquiry.\nSincerely,\nHotle z. michall\nHattie L. Mitchell\nChief, Regulatory Review and Reinvention\nOffice of Hazardous Materials Standards\n111.8\n050187\n\n<<<PAGE 2>>>\n\nCorbin\n, STEPTOE &)OHNSON «P\n517! 8\nATTORNEYS\nAT LAW\nDefinitions\n05-0187\n202.429.8063\nDavid H. Coburn\n1330 Connecticut Avenue. NW\ndcoburn@steptoe.com\nWashington. DC 20036-1795\nTel 202.429.3000\nFax 202.429.3902\nsteptoe.com\nJuly 29, 2005\nHattie L. Mitchell\nChief, Regulatory Review and Reinvention\nOffice of Hazardous Materials Safety\nPipeline and Hazardous Materials Safety Administration\nU.S. Department of Transportation\n400 Seventh Street, S W\nWashington, DC 20590\nRe: Request for Clarification -- HM 223, Applicability of Hazardous Materials Regulations to\nLoading, Unloading and Storage\nDear Ms. Mitchell:\nBy this letter, Georgia-Pacific Corp. hereby requests clarification of a question that has arisen in\nconnection with the definition of the term \"unloading incidental to movement\" in section 171.8 of the\nHazardous Materials Regulations, 49 C.F.R. § 171.8. As relevant, that section states as follows:\nUnloading incidental to movement means removing a packaged or\nfor a bulk packaging, emptying a hazardous material from the bulk packaging\ncontainerized hazardous material from a transport vehicle, aircraft, or vessel, or\nafter the hazardous material has been delivered to the consignee when performed\nby carrier personnel or in the presence of carrier personnel or, in the case of a\nprivate motor carrier, while the driver of the motor vehicle from which the\nhazardous material is being unloaded immediately after movement is completed is\npresent during the unloading operation.\nThe question is whether the unloading of bulk or other hazardous materials constitutes\n\"unloading incidental to movement\" when the driver of the motor vehicle being unloaded is present at\nthe same facility at which the unloading is occurring, but is not present at the actual site of the\nunloading, and the power unit operated by that driver prior to unloading remains attached to the trailer or\ncontainer being unloaded. This question most often arises in connection with private motor carriage\noperations conducted by Georgia-Pacific. Unloading often occurs at Georgia-Pacific facilities where the\ndriver's services are not used in connection with unloading operations that follow the driver's delivery\nWASHINGTON\nPHOENIX\nLOS ANGELES\nLONDON\nBRUSSELS\n\n<<<PAGE 3>>>\n\nSTEPTOE &JOHNSON HIP\nMs. Hattie L, Mitchell\nJuly 29, 2005\nPage 2\nof a load, but the driver's power unit remains at the unloading site even though the driver is at another\nplace in the facility or has left the facility.\nOur judgment is that since the unloading is not performed either by carrier personnel, or in the\npresence of the driver or other carrier personnel, the unloading is not \"unloading incidental to\nmovement\" and thus not within the scope of the HMR. The agency's regulatory authority in this\nsituation appears to turn on the presence or not of the driver at the site of unloading, as opposed to some\nother point in the same facility. This interpretation finds support in the above-quoted definition of\n\"unloading incidental to movement\" and at § 171.1(d)(2), which likewise provides that the HMR do not\napply to unloading operations where the driver of a private motor vehicle is not present in the unloading\ndecision, addresses precisely the situation of the carrier's power unit's continued attachment to the\nHowever, neither the agency's October 30, 2003 final rules decision, or its April 15, 2005\ntrailer or container being unloaded. The October 2003 decision notes that unloading would not be\nsubject to the HMR where, among other things, the carrier has \"detached its motive power.\" See 63\nFed. Reg. at 61917. Further, the April 2005 decision makes clear that in the situation where the driver is\npresent at the facility for purposes of picking up another load (and thus presumably has removed his\npower unit from the site of the unloading), but is not present at the point of unloading, then the\nunloading is not \"unloading incidental to movement.\" 70 Fed. Reg. at 20021. Nonetheless, our\nunderstanding is that whether the motive power unit remains attached to the trailer or container being\nunloaded is not a factor in determining whether or not the HMR apply. Rather, the critical factor in\nterms of HMR applicability appears to be the presence or not of the driver or other carrier personnel.\nWe look forward to your written confirmation that our understanding is correct.\nRespectfully,\nand H. Elim ays\nDavid H. Coburn\nAttorney for Georgia-Pacific Corp.","truncated":false,"body_characters":6438}