Cognis Corporation — Hazardous Materials Safety Interpretation

Page 1J.S. Departmen of Transportatior Washington, D.C. 20590 400 Seventh Street, S.W. Pipeline and Administration Hazardous Materials Safety NOV - 4 2005 Ms. Cindy S. Bryant Reference No.: 05-0248 Transport Regulatory Specialist Cognis Corporation 5051 Estecreek Drive Cincinnati, OH 45232-1446 Dear Ms. Bryant: This responds to your September 27, 2005 letter requesting clarification of applicability of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to loading operations. Specifically, you ask whether the attendance requirements in § 177.834(i) apply when a shipper is filling a cargo tank prior to the carrier's arrival at the facility to take possession of the shipment for transportation. The answer is no. The filling of a cargo tank or other bulk packaging by a shipper is regulated as a pre-transportation function under the HMR. Thus, a shipper must comply with applicable HMR requirements concerning compatibility of lading with the packaging, outage and filling limits, securing of valves and closures, venting, and similar provisions. The attendance requirements in § 177.834(i) apply to loading and unloading operations conducted by carrier personnel. Shipper personnel filling a cargo tank prior to a carrier taking possession of the hazardous material for transportation need not comply with the attendance requirements in § 177.834(i). I trust this satisfies your inquiry. Sincerely, Mry Susan Gorky Acting Director Office of Hazardous Materials Standards 177.834( 050248#

Page 2Foster • $177-83461 Ognis September 27, 2005 Loading / unlading U.S. Department of Transportation Cognis Corporation Pipeline and Hazardous Materials Safety Administration North American Headquarters Office of Hazardous Materials Standards 5051 Estecreek Drive PHH-10 400 Seventh Street, S.W. Cincinnati, OH 45232-1446 USA Washington, DC 20590 Phone 513/482-3000 www.cognis-us.com Att: Mr. Ed Mazzullo Subject: HM-223, Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage I have a questions concerning HM-223 and would greatly appreciate clarification. The questions are specific to cargo tank loading. Prior to HM-223, when the carrier's motive power was not present at the loading (filling) of a cargo tank, the cargo tank was not considered to be "in transportation". Therefore, attendance requirements in part 177 did not apply. However, from reading HM-223 is seems it does not make a difference who loads (fills) a bulk package, such as a cargo tank. The loading/filling function is regulated when performed by any person, be it the shipper or carrier. If a shipper performs a loading (filling) function prior to the carrier's arrival, it is a pre- transportation function and is subject to all applicable regulatory requirements, as stated in the docket. Section 173.30 states that a person who is subject to the loading/unloading regulations must load or unload hazardous materials into or from a transport vehicle in conformance with applicable loading and unloading requirements of parts 174, 175, 176, and 177. I would appreciate confirmation on whether this means the attendance requirements of 177.834(i) apply when the carrier's motive power is not present. If this interpretation is not what was intended as an outcome of HM-223, will PHMSA correct it in a rulemaking? If PHMSA will be addressing this in a future rulemaking, what timeline might the regulated community anticipate and what suggestions do you give for immediate compliance (i.e. which interpretation should the regulated community comply with today? If this interpretation is what was intended, can appropriate electronic surveillance and shut-off systems be used to meet attendance requirements? I can be reached at 513/482-5022 to discuss. Sincere regards, Andy I bupiet Cindy S. Bryant Transport Regulatory Specialist#