{"operation":"document","citation":"08-0176","title":"Garvin, Light, Hanson & Feary Attorneys At Law — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2008-09-03","effective_on":null,"summary":"08-0176 response to Garvin, Light, Hanson & Feary Attorneys At Law concerning 171.16.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-08-0176.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-08-0176.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-08-0176","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2008/080176.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nMr. Timothy W. Wiseman\nScopelitis, Gamin, Light, Hanson & Feary\nAttorneys At Law\n10 W. Market Street, Suite 1500\nIndianap'olis, IN 46204\nRef. No. 08-0 1 76\nDear Mr. Wiseman:\nThis is in response to your July 2, 2008 letter requesting clarification of the Hazardous Materials\nRegulations (HMR; 49 CFR Parts 1 7 1 - 1 80) applicable to incident reporting requirements. In\nyour letter, you state that your firm represents a retailer engaged in the transportation,\nwarehousing, and distribution of merchandise.\nAccording to your letter and a conversation with a member of my staff, Glenn Foster, the retail\nlocations are held and operated in the name of one legal entity (Entity A). The motor carrier\ntransporting goods under an operating authority issued by the Federal Motor Carrier Safety\nAdministration (FMCSA) is held and operated in the name of a second legal entity (Entity B).\nThe entity providing warehousing and distribution services is held and operated under a third\nlegal entity (Entity C). The parent company of the three entities is the same. The majority of\nmerchandise transported is either non-hazardous or meets the requirements for consumer\ncommodities shipments.\nIn your letter, you ask whether Entity C, the warehousing company, is required to submit a\nHazardous Materials Incident Report (DOT Form F 5800. I ) when it receives a trailer containing\nundeclared hazardous materials from Entity A, the retailer, and being transported by Entity B,\nthe motor carrier. You also ask whether the response to this scenario changes if Entity B, the\nmotor carrier, has delivered the trailer and departed the premises of Entity C. You further ask\nwhether the response to these scenarios changes because the parent company of the three entities\nis the same.\nAs required in 17 1.16, each person in physical possession of a hazardous material at the time\nof an incident specified in 8 17 1.16 occurs during transportation (including loading, unloading,\nand temporary storage) must submit a Hazardous Materials Incident Report on DOT Form F\n5800.1 (0112004) within 30 days of discovery of the incident. The incidents in 8 171.16 include\nthe discovery of an undeclared hazardous material during transportation. As defined in 3 17 1.8,\n\"transportation\" means the movement of property and loading, unloading, or storage incidental\nto that movement. Section 171.8 also defines \"storage incidental to movement\" to mean storage\nof a transport vehicle, freight container, or package containing a hazardous material by any\n\n<<<PAGE 2>>>\n\nperson between the time that a carrier takes physical possession of the hazardous material for the\npurpose of transporting it in commerce until the package containing the hazardous material is\nphysically delivered to the destination indicated on a shipping document, package marking, or\nother medium, or, in the case of a private motor carrier, between the time that a motor vehicle\ndriver takes physical possession of the hazardous material for the purpose of transporting it in\ncommerce until the driver relinquishes possession of the package at its destination and is no\nlonger responsible for performing functions subject to the HMR with respect to that particular\npackage.\nBased on the information you provided in your first scenario, Entity C, the warehousing\ncompany discovered an undeclared hazardous material during \"transportation,\" and, therefore, is\nrequired to submit a Hazardous Materials Incident Report (DOT Form F 5800.1) within 30 days\nof discovery of the incident. Under your second scenario, because Entity B, the motor carrier,\nhas delivered the trailer and departed the premises of Entity C, the shipment is no longer in\n\"transportation,\" and a Hazardous Materials Incident Report is not required to be submitted by\nEntity B. The response to both scenarios is not affected because the parent company of the three\nentities is the same\nI hope this information is helpful.\nSusan Gorsky,\nActing Chief, Standards Development\nOffice of Hazardous Materials Standards\n\n<<<PAGE 3>>>\n\nTIMOTHY W. WISEMAN tw~seman@scopel~tis.com SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY\nATTORNEYS AT LAW\nINDIANAPOLIS\nCHICAGO. WASHINGTON, D.C.. LOS ANGELES KANSAS CITY. CHATTANOOGA DETROIT\n10 W. Market Sbet, Suite 1500 Indianapolis, Indiana 6204\nphone (317) 637-1777 fax (3171 687-2414\nwww.scopelitis.com\nJuly 2, 2008\nMr. Edward T. Mazzullo\nOffice of Hazardous Material Standards\nPipeline & Hazardous Material Safety Adm.\nSuite E26, East Building, 2nd Floor\nU.S. Department of Transportation\n1200 new Jersey Ave., SE\nWashington, DC 20590-000 1\nRe: Interpretation of 49 C.F.R. § 17 1.16\nPHMSA Case No. : 08-0058-CAR-CE\nDear Mr. Mazzullo:\nThis Firm represents a retailer which is engaged, inter alia, in the\ntransportation, warehousing and distribution of merchandise. The company's\ncorporate structure is set up as follows:\nThe retail locations are held and operated in the name of one legal entity\n(\"Entity A\"); the motor carrier transporting the goods under operating authority\nissued by the Federal Motor Carrier safety Administration (\"FMCSA\") is held\nand operated in the name of a different legal entity (\"Entity B\"); and, finally, the\nentity providing warehousing and distribution services is held and operated in\nyet a different legal entity (\"Entity C\"). The ultimate parent of each of these\nthree entities is the same. The vast majority of the merchandise transported is\nnot hazardous or qualifies as a consumer commodity.\nThe purpose of this letter is to seek guidance from the Pipeline and Hazardous\nMaterial Safety Administration (\"PHMSA\") on whether there would be an\nobligation to file a hazardous material incident report (DOT Form F5800.1)\nunder 49 C.F.R. § 171.16 when undisclosed hazardous material is discovered\nunder the following scenarios. For example, would Entity C, the warehousing\ncompany, have an obligation to file an incident report when it receives a trailer\nSERVICES OUTSIDE CALIFORNIA AND MICHIGAN PROVIDED BY SCOPELITIS, GARVIN, LIGHT. HANSON 8 FEARY, PROFESSIONAL CORPORATION\nSERVICES IN MICHIGAN PROVIDED BY SCOPELITIS. GARVIN, LIGHT, HANSON 8 FEARY, PROFESSIONAL LIMITED LIABILITY COMPANY\nSERVICES IN CALIFORNIA PROVIDED BY SCOPELITIS, GARVIN, LIGHT, HANSON 8 FEARY, LIMITED LIABILITY PARTNERSHIP\n\n<<<PAGE 4>>>\n\nPage 2\nJuly 2, 2008\nfrom Entity A, the retailer, containing undisclosed hazardous material that was\ndelivered by Entity B, the motor carrier? Would the answer to that question\nchange if the driver for Entity B had dropped the trailer at Entity C's facility\nand departed?\nBased upon prior interpretations issued by the PHMSA related to § 171.16, it\nappears as though a consignee is not required to submit an incident report if it\nidentifies undisclosed hazardous material on a delivered shipment after the\nmotor carrier has departed the consignee's facility. However, my client was\nuncertain as to whether the fact that each of its three corporate legal entities\nare owged by the same parent in any way changes this prior interpretation.\nIf you have any questions or need any further information to process this\nrequest for interpretation, please do not hesitate to contact me. I look forward\nto receiving your response at your convenience.\nVery truly yours,\nTimothy W. Wiseman\nTWW/ kkc\nSCOPELITIS, GARVIN, LIGHT, HANSON & FEARY","truncated":false,"body_characters":7453}