{"operation":"document","citation":"05-0295","title":"DuPont SHE Excellence Center — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2006-01-03","effective_on":null,"summary":"05-0295 response to DuPont SHE Excellence Center concerning 177.834.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0295.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0295.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0295","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2005/050295.pdf","body":"<<<PAGE 1>>>\n\nJAN 3 2006\nMs. Cherry Burke\nRef. No. 05-0295\nDistribution Safety Consultant\nDuPont SHE Excellence Center\nDuPont Building 6096\n1007 Market Street\nWilmington, DE 19898\nDear Ms. Burke:\nThis is in response to your November 18, 2005 letter requesting clarification regarding the\nattendance requirements for cargo tanks specified under the Hazardous Materials\nRegulations (HMR; 49 CFR Parts 171-180). In your scenario, transportation has ceased,\nthe cargo tank has been placed on consignee's property, and the motive power has been\nremoved. Specifically, you ask if the cargo tank attendance requirements in § 177.834(i)\nare applicable to a cargo tank that is loaded under the conditions in this scenario.\nThe answer is no. A pre-transportation function as specified in the HMR is a function\nrequired to assure the safe transportation of a hazardous material in commerce. Each\nshipper of a hazardous material must comply with applicable HMR requirements\nconcerning compatibility of the lading with the packaging, outage and filling limits,\nsecuring of valves and closures, venting, and similar provisions. The attendance\nrequirements in § 177.834(i) apply to loading and unloading operations performed by the\ncarrier. Therefore, a shipper who loads a cargo tank prior to the onset of transportation in\ncommerce (i.e., the arrival of the carrier and the attachment of motive power) is not subject\nto the attendance requirements in § 177.834(i).\nI hope this information is helpful.\nSincerely,\nHott\nHattie L. Mitchell, Chief\nRegulatory Review and Reinvention\nOffice of Hazardous Materials Standards\n177.834(0)\n050295\n\n<<<PAGE 2>>>\n\nFile: Cargo Tank Loading Attendance\nMr. Edward Mazzullo\nU.S. Department of Transportation\nPipeline and Hazardous Materials Safety Administration\nOffice of Hazardous Materials Safety\n400 7th St., S.W.\nWashington, DC 20590\nREQUEST FOR INTERPRETATION CONCERNING USE OF REMOTE VIDEO SURVEILLANCE\nTO OBSERVE CARGO TANK LOADING OPERATIONS\nDear Mr. Mazzullo:\nWith the enacting of HM-223, questions have arisen concerning the need for physical attendance within 25 feet\nof a cargo tank being loaded with regulated hazardous materials.\nPrior to HM-223, at least 2 published interpretations from the Office of Hazardous Materials Standards\n(attached) made it clear that under certain circumstances - namely when the carrier's obligation for\ntransportation has ceased, the cargo tank has been placed on the consignee's property, and the motive power\nremoved - the cargo tank was no longer considered to be in transportation, and therefore the attendance rules in\n49 CFR 177.834 did not apply.\nWith HM-223, the regulations changed to define the loading of a cargo tank as a \"pre-transportation function,\"\nto which the HMR do apply.\nQuestion 1. Under the current regulations, does a cargo tank being loaded under the circumstances described\nabove (i.e. when the carrier is not present or involved, and the motive power has been disconnected and left the\narea need to be attended throughout the process by a qualified, alert person within 25 feet of the tank and\nhaving an unobstructed view of it?\nQuestion 2. If attendance is required, is the use of remote video surveillance in the control room an acceptable\nalternative to having a person within 25 feet of the tank?\nOur questions are raised for two reasons. Cargo tanks containing liquefied compressed gas can take upwards of\n5 hours to load. Physical attendance during that entire tire period, particularly during inclement weather,\nplaces a new and burdensome requirement on an operation that previously was not subject to this requirement.\nAlso, pre-HM-223, the tank car regulations had read such that the unloading of tank cars had to be attended by\nan unloader during the entire period of unloading and while the unloading connections were intact. A number\nof formal and informal interpretations were issued by the Office of Hazardous Material Standards and the\n\n<<<PAGE 3>>>\n\nthe material being unloaded;\n2) The employee responsible for unloading was instructed in the procedures to be followed during\nunloading and in the event of an emergency, and had the authority and ability to halt the flow of product\nimmediately and take emergency action;\n3) In the event of an emergency, the system was capable of immediately halting the flow of product or\nalerting the employee responsible for unloading;\n4) The monitoring device provided immediate notification of any malfunction to the person responsible\nfor unloading, or the device was checked hourly for malfunctions; and\n5) In case of a malfunction, the device would no longer be relied upon and instead the individual\nresponsible for unloading would constantly observe the unloading.\n(The use of remote observation through signaling systems and video surveillance has now been incorporated\ninto the tank car unloading regulations that apply to transloading operations.)\nAn interpretation that remote observation of cargo tank loading is permissible - under these same conditions that\nwere acceptable for tank car unloading - would help to relieve the regulated community of this new and\nburdensome requirement, while still providing an equivalent level of safety. Again, we are seeking this\ninterpretation of the regulations as they apply when the carrier's obligation for transportation has ceased, the\ncargo tank has been placed on the consignee's property, and the motive power removed.\nYour assistance in clarifying these issues is most appreciated.\nSincerely,\nCheryl A. Burke\nCheryl A. Burke\nDistribution Safety Consultant\nSafety, Health, and Environmental Excellence Center, DuPont Building 6096\nph: 302-774-2778; fx: 302-351-4111; e-mail: cherry.burke@usa.dupont.com\n\n<<<PAGE 4>>>\n\nLadies\n177834interp.pdf 177834interpa.pdf\n(67 KB)\n(165 KB)\nRequest for interpretation - please take appropriate action.\n-----Original Message-- - - -\nFrom: Cherry Burke [mailto:Cherry.Burke@USA.dupont.com]\nSent: Friday, November 11, 2005 3:31 PM\nTo: Mazzullo, Ann <PHMSA>\nSubject: Question\nKnow this isn't your area, but to whom do I write to request a formal DOT interpretation?\nDo I need to send it through paper mail, or can\nI e-mail it to whomever you indicate?\ncould you forward this note on?\nissuance of HM-223 as a final rule.\nThe cargo tank motor vehicle loading attendance regs have changed somewhat with the\nPreviously, DOT had published letters of\ninterpretation that basically said that attendance requirements did not apply for loading\nand unloading when the carrier's obligation for the transportation had ceased, the cargo\ntank was placed on private property,\nand the motive power disconnected.\nI've attached\nthose below.\nThe logic was that under these circumstances, the cargo tank\nwas not in\ntransportation.\nThe new regulations - which\nindicate that loading\nis a pre-transportation\nfunction and the HMR apply - make the previous interpretations invalid.\nSince the current regs would now require attendance by having a qualified person within 25\nnot of the ago ten moved tell ike toe a a formal ligation ats deeded ther\neet of the cargo tank\nvideo monitoring would be an acceptable alternative for loading attendance under these\ncircumstances.\nSome years ago, the FRA issued an interpretatation that remote video monitoring (with\ncertain caveats) was acceptable for attending tank car unloading. I'm hoping for the same\nwith cargo tank loading.\nThanks very much -\nCherry\n(See attached file: 177834interp.pdf) (See attached file: 177834interpa.pdf) (See scenario\n2, question 3)\nThis communication is for use by the intended recipient and contains information that may\nconfidential or copyrighted under applicable law. If you are not the\nintended recipient, you are hereby formally notified that any use, copying or distribution\nof this e-mail, in whole or in part, is strictly prohibited. Please notify the sender by\nreturn e-mail and delete this e-mail from your system. Unless explicitly and consoicuousl\nlesignated as \"E-Contract Intended\", this e-mail does not constitute a contract offer, a\ncontract amendment, or an acceptance of a contract offer. This e-mail does not constitute\na consent to the use of sender's contact information for direct marketing purposes or for\nransfers of data to third parties.\n\n<<<PAGE 5>>>\n\nFER 1 3 1998\nMr. Dana Murphy\nVice President\nWest Central Environmental Corp.\nPost Office Box 83\nRensselaer, NY 12144\nDeat Mr. Murphy:\nThis is in response to your letter of December 5, 1997, concerning the status of a cargo tank\nwhich has been separated from its tractor. Specifically you asked if a cargo tank, located on\nprivate property with the motive power removed from the property, is subject to the\nattendance requirements of the Hazardous Materials Regulations (§ 177.834(i)) as it is loaded\nor off-loaded over a period of 12 to 48 hours.\n\"Transportation,\" as defined in § 5102 of the Federal hazardous material transportation law\n(49 U.S.C. 5101-5127), is any movement of property by any mode, and any loading,\nunloading, or storage incident to the movement. As applicable to the attendance requirements,\nhighway transportation of a cargo tank ceases when: (1) The carrier's obligation for\ntransporting the materials is fulfilled; (2) The cargo tank has been placed upon the consignee's\npremises; and (3) The motive power has been removed from the trailer and removed from the\npremises (§ 177.834(i)(2)).\nA tank removed from its motive power on private property is not considered in transportation\nand not subject the attendance requirements when the above conditions have been met. For\ninformation concerning the Federal Motor Carrier Safety Regulations in 49 CFR Parts 300-\n399, please contact the Federal Highway Administration's Office of Motor Carriers at (202)\n366-1790.\nI hope this answers your inquiry. If we can be of further assistance, do not hesitate to contact\nus.\nSincerely,\nNilo\nDelmer F. Billings\nChief, Regulations Development\nOffice of Hazardous Materials Standards\n\n<<<PAGE 6>>>\n\n518-272-6891\nN.T.S. Waste Haulers #4A-100/\nGrand Island, NY\n716-775-3335\nFAX COVER SHEET\nTAX#:\n(518) 272-0108\n# OF PAGES INCLUDING COVER SHEET:\nTO:\nMichael JohNsEN\nFROM:\nDANA MuRPhY\nDATE:\n12/5/97\nTIME:\nRE:\nCFR 49 SubpART B 177.834(1)()(2)(3) 4(4)\nMR. Johnsen\nIs A SemiTRailer chego TANK which hAs beEN\nSpoTTed ON pRIvATe PRoperTy (SeperaTed FRom iTS TRACTOR)\nSTill Regulated by The above mentioned prets ANdloR oTher\n- FMESR while londiNg oR oFFlOAdiNg HAZARdOUS MATerIAlS.\nSpecifically if such Loading an offleading wAs\nTo OccouR over AN extended period Of Time, SAY\nI2 To 48 hes?\nRespectFully\nЗанА пикрас\nICE PRESIdENT\nLE YOU DO NOT RECEIVE ALL PAGES TRANSMITTED, PLEASE NOTIFY MF\nIMMEDIATELY AT (518) 272-6891.\n\n<<<PAGE 7>>>\n\nMr. Phil Stewart\nDow Chemical Canada, Inc.\nRef. No. 00-0132\n1425 Vidal Street South\nSarnia, Ontario\nCANADA N7T 8C6\nDear Mr. Stewart:\nThis is in response to your request concerning the attendance requirements for loading and\nunloading of a cargo tank motor vehicle under 177.834(i) of the Hazardous Materials\nRegulations (HMR; 49 CFR Parts 171-180). Your questions are paraphrased and answered as\nScenario 1:\nA cargo tank arrives at our unloading rack. The motive power remains connected. The cargo\ntank is unloaded into a storage tank, tank farm or processing unit by our plant personnel.\nIs the cargo tank considered to be \"in transportation\"? If so, do all the unloading\nattendance requirements apply, including the requirement that personnel remain within 25\nfeet of the tank during the entire offloading operation?\nA1.\nYes, if the carrier's obligation to transport the hazardous material is not yet fulfilled, the\ncargo tank is still \"in transportation.\" All unloading requirements of the HMR apply. As\nprovided by § 177.834(i)(2), a carrier's obligation to ensure attendance during unloading\nceases, and transportation ends, when: (1) the carrier's obligation for transporting the\nmaterial is fulfilled; (2) the cargo tank is placed on the consignee's premises; and (3) the\nmotive power has been removed from the premises. Because the unloading is regulated\nunder the HMR, due to the carrier's continuing presence, facility personnel must comply\nwith the applicable unloading in § 177.834. As provided by § 173.30, a person wh\nunloads hazardous materials from a cargo tank motor vehicle must comply with the\napplicable unloading requirements of Part 177; i.e., § 177.834. Therefore, under scenario\n1, plant personnel who perform the unloading function must comply with the attendance\nrequirements in $ 177.834.\nYou provided other alternative scenarios, some where the motive power remained and some\nwhere the motive power was removed. If the carrier has no further obligation, as determined\nunder § 177.834(i)(2), then the attendance requirements do not apply to anyone. If the carrier\nstill has an obligation, the attendance requirements then apply to whoever unloads.\n177.834\n000132\n-\n\n<<<PAGE 8>>>\n\nA2.\nYes. As provided by § 177.834(i)(1), a cargo tank must be attended by a qualified person\nat all times when it is being loaded. The person who is responsible for loading the cargo\ntank is also responsible for ensuring that it is attended. A person is \"qualified\" if he has\nbeen made aware of the nature of the hazardous material which is to be loaded or\nunloaded, he has been instructed on the procedures to be followed in emergencies, he is\nauthorized to move the cargo tank, and he has the means to do so.\n(See § 177,834(i)(4)).\nQ3.\nIs the tank considered to be \"in transportation\" if the motive power is removed?\nA3.\nNo. A cargo tank removed from its motive power on private property is not considered to\nbe in transportation. Therefore, if a motor carrier delivers a cargo tank to a shipper,\ndisconnects the motive power and leaves the premises, the person loading the cargo tank\nis not responsible for ensuring attendance as provided by § 177.834(i)(1).\nYou also stated that your plant sites have no public access and that the loading and unloading\nracks have fully automated electronic monitoring capabilities that can be controlled from control\nrooms and that can be manually operated if the automated process malfunctions. The HMR\ncurrently do not provide for the use of an automated monitoring system, in lieu of direct human\nintervention, for the loading and unloading of cargo tanks in transportation. However, you may\nwish to seek authorization to use an automated monitoring system by submitting an application\nfor exemption in accordance with the procedures in § 107.105. I have enclosed for your\ninformation copies of three Federal Register publications on the attendance requirements.\nI hope this information is helpful.\nSincerely,\nHotte r. Michell\nHattie L. Mitchell\nChief, Regulatory Review and Reinvention\nOffice of Hazardous Materials Standards\nEnclosures\n\n<<<PAGE 9>>>\n\nTo: U.S. Department of\nFax:\n(202) 366-3012\nTransportation\nFrom: Phil Stewart\nDate: 28/04/2000\nRe:\nLoading/Unloading\nPages: 2\nRequirements\nCC:\nUrgent, For Review\nPlease Comment X Please Reply Please Recycle\nNotes:\nTo Whom It May Concern:\nAltached is a document I sent via your web page carlier today. I received a phone\nthis alturnoon stating that I was required to fax this request to your department if I\na written response to iny questions is required. In light of this, would you please\nrevlow and send me a written response of interpretation or ruling to the questions\nlisted and sent a reply back to the above mentioned address.\nThanks,\nPhil Stewart\nPhil Stewart:\n1=.\n•72\nir page!\n...\n• 28/04/00\n..2L\n..:\n\n<<<PAGE 10>>>\n\nmessage_lype: Other\ncomments: Would you please provide your interpretation or ruling with regards attendance\nrequirements as stipulated in 177.834 (i)(I) & (2), 10 the following Loading/Unloading situations I\nhave provided below. Preamble All of our plants sitos are controllod facilities. This means there is no\npublic accoss. Londing/Unloading racks have automated clectronic monitoring capabilities and\ncontrolled via a control rooms. We also have tho ability to manually operate these racks if the event\nour allomated process malfunctions. All our loading/unloading racks or areas are designed for full\ncontaimnent should a spill occur including deluge systems should a fire occur. Our plant personnel\nare qualifled and trained on the material they are working with as well as the operating procedurcs.\nSituntion #1 Cargo tank arrives at unloading rack. Motive of power remains hooked up. The tank will\nhe offloaded into a storage tank or tank farm by our plant personncl. Is this tank considered to be \"Tn\nTransport\"? If so, do all the unloading attendance requirements apply as stipulated including our\npersonnel lo be within 25' of the tank during the cntire offloading operation? Situation #2 Cargo tank\narrives at unloading rack. Molive of power is removed and carrier Icaves. The tank will be offloaded\ninto a storago tank or tank farm by our plant personnel. Is this tank considered to be \"In Transport\"? IF\nso, do all the unloading attendance requirements apply as stipulated including our personnel to be.\nwithin 25' of the tank during the ontire offloading operation? Situation #3 Cargo tank arrivos at\nunloading rack. Motive of power remains hooked up. The tank will be offloaded directly into our\nprocessing unit by our plant personnel. Is this tank considered to be \"In Transport\"? If so, do all the\nunloading attendance requirements apply as stipulated including our personnel to be within 25' of the\ntank during the entire ofloading opcration? Situation #4 Cargo tank arrives at unloading rack. Motive:\nof power is removed and carricr leaves. 'The tank will be offloaded dirctly into our processing unis\nwhy our plant personnol. Is this tank considered to bo \"In Transport\"? If so, do all the unloading.\nallendanco requirements apply as stipulated including our personnel to be within 25' of the tank.\nduring the entire offloading opcration? Situation #5 Gargo tank arrives at loading rack. The motive of\npower remains hooked up. The tank will be loaded from our storage tanks by our plant personnel. Is\nthis tank considered to bo \"In Transport\"? If so, do all the loading attendance requirements apply as\nstipulaled. Is our personnel who will be loading this tank icquired to be within 25' of the tank during\nthe entire loading period or what docs attended by a qualified porson at all times when the tank is\nbeing loadod mean? Situation #6 Cargo tank arrives at loading rack. The motive of power is removed\nand co cadred a be i ransport be so d al the lording and e eric men ali trie\ntipulated? Is our plant personncl who will be loading this tank required to be within 25' of the tanl\nfuring the entire loading poriod or what does attended by a qualified person at all times when the tank.\nis being loaded moan? I apologize for such a wordy document, but I wanted to capture as many of the\nvarious typos of loading/inloading situations that do occur and to obtain a complete an answer as\norganization: Dow Chemical Canada Inc.\nphone: (519) 339-5047\nhttp://hazmat.dot.gov/cgi-bin/formmail.pl\n04/28/2000","truncated":false,"body_characters":19050}