{"operation":"document","citation":"12-0132","title":"Hogan Lovells US LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2012-09-12","effective_on":null,"summary":"12-0132 response to Hogan Lovells US LLP concerning 177.834, 177.837, 177.840.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0132.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0132.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0132","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2012/120132.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. Kenneth M. Kastner\nHogan Lovells US LLP\nColumbia Square\n555 Thirteenth St., N.W.\nWashington, D.C. 20004\nReference No. 12-0132\nDear Mr. Kastner:\nThis is in response to your request for clarification of the Hazardous Materials Regulations\n(HMR; 49 CFE, Parts 171-180) applicable to attendance requirements specified in\n§ 177 .834(i)(3). In your letter, you state that you have a client that conducts such operations\nfrom a shelter that, although 25 feet from the cargo tank, would be more than 25 feet in\nwalking distance if the attendant were to leave the shelter. You explain this is due to the\nconfiguration of the shelter's exit, which is in the back of the shelter. You also state that in\nthe event of an emergency, all operations, such as closing valves can be performed without\nleaving the shelter. You ask whether \"within 7.62 m (25 feet) of the cargo tank\" means\nwalking distance to the cargo tank or a 25 foot view of the cargo tank.\nSection 177.834 requires that, except for unloading operations subject to §§ 177.837( d),\n177.840(p), and 177.840(q), a qualified person \"attends\" the unloading or unloading of a\ncargo tank if, throughout the process, he is alert and within 7.62 m (25 feet) of the cargo\ntank. For purposes of§ 177.834(i)(3), \"within 7.62m (25 feet)\" means a straight line\ndistance; an actual walking distance and not a field of view. It is the opinion of this Office\nthat considering the content of your letter and attachment, and considering that all controls\ncan be performed without leaving the shelter, you may wish to apply for a special permit in\naccordance with Part I 07, Subpart B, \"Special Permits.\" Section 107.105 specifies the\nelements that each application must include, one of which is demonstrating an equivalent\nlevel of safety to the HMR. Section 107.105 also includes the various ways you may submit\nyour application. The telephone number for the Office of Hazardous Materials Special\nPermits and Approvals is 202/366-4535.\nI hope this information is helpful. Please contact this office should you have additional\nquestions.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 2>>>\n\nM(!_ 1nfrr~ ,\nct3J77· ga<f u) .\nHogan Lovells US LLP d J Ll J J\nColumbia Square Loa. IYIC( aM It Oa(J/I'Jq\n555 Thirteenth Street, IWI/ J J\nWashington, DC 20004 In 0 13 '?\nT +1 202 637 5600 A,_ - £._\nF +1 202 637 5910\nwww.hoganlovells.com\nJune 15, 2012\nVia E-Mail\nMr. Charles E. Betts\nDirector, Standards and Rulemaking Division\nPipeline & Hazardous Materials Safety Administration (PHH-1 O)PHH-1 0\nU.S. Department of Transportation, East Building\n1200 New Jersey Avenue, SE\nWashington, DC 20590-0001\nRequest for Interpretation Regarding Loading and Unloading Attendance Requirement\nDear Mr. Betts:\nPlease accept this letter as an official request pursuant to 49 CFR § 1 05 .15(a)( 4) for an\ninterpretation of the attendance requirement at 49 CFR § 177.834(i), which requires that a \"cargo\ntank must be attended by a qualified person at all times when it is being loaded.\" In turn, 49 CFR §\n177 .834(i)(3) provides that a qualified person is considered to be attending \"the loading or unloading\nof a cargo tank, if throughout the process, he is alert and is within 7.62 m (25 feet) of the cargo tank.\"\nOn behalf of our client, we are requesting clarification on what DOT means by being within 25 feet of\nthe cargo tank, specifically whether DOT requires the qualified person to be within a 25 foot view of\nthe cargo tank or a 25 foot walking distance of the cargo tank.\nDuring typical loading operations, our client's attendants conduct loading from a shelter like the one\nshown in the figure below.\nHogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. Hogan Lovells refers to the international legal practice comprising Hogan Lovells\nUS LLP. Hogan Lovells International LLP, Hogan Lovells Wo~dwide Group (a Swiss Verein), and their affiliated businesses with offices in: Abu Dhabi Alicante Amsterdam\nBaltimore Beijing B~in Boulder Brussels Caracas Chicago Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong\nKong Houston London Los Angeles Madrid Miami Milan Moscow Munich New York Northern Virginia Paris Philadelphia Pragua Rome San Francisco\nShanghai Silicon Valley Singapore Tol<yo Wa<stffl Washington DC Associated offices: Budapest Jeddah Riyadh Zagreb\n\\\\DC- 090427/000003 • 3421231 v3\n\n<<<PAGE 3>>>\n\nMr. Charles Betts - 2- June 15, 2012\nI\nDriver Location During Loading p\nh~)J). .. ~\n/··.t:;.:.::..,,.cb 25 I'\nThis shelter contains loading controls, including an emergency stop (E-Stop) that the attendant can\nactivate to immediately terminate loading of the cargo tank. Additionally, because loading\noperations may include loading of a compressed gas, the shelter provides occupational safety to the\nattendant. The shelter also provides relief to the attendant from inclement weather.\nThe shelter has windows that provide a direct line of sight of the cargo tank and loading operation.\nThe attendant standing in the shelter and looking out the window will be within a 25 foot direct view\nof the cargo tank, and within a foot of the emergency controls. But at some loading areas at certain\nplants, the attendant is not within a 25 foot walking distance to the tank truck. This is because in\norder to walk to the tank truck, the attendant must turn around, exit the door, walk along the shelter\nand then arrive at the tank truck. This process adds several feet of walking distance, which in some\ncases, will exceed 25 feet.\nWe hope you will agree that the shelter scenario described above is a practical, safe and acceptable\napproach that meets the intent of the rule. The rule itself seems to focus on the ability of the\nattendant to view the loading operation closely and react to it quickly if a problem arises. For\nexample, the last sentence of 49 CFR § 177.834(i)(3) provides, \"The qualified person attending the\nunloading of a cargo tank must have an unobstructed view of the cargo tank and delivery hose to the\n\\\\DC - 090427/000003 - 3421231 v3\n\n<<<PAGE 4>>>\n\nMr. Charles Betts - 3 - June 15, 2012\nmaximum extent practicable during the unloading operation.\" In addition, DOT's preamble\ndiscussions of the rule suggests that DOT was mostly concerned that the attendant be able to view\nloading and unloading and react as necessary to situations. Specifically, the December 10, 1997\npreamble states that DOT's \"position consistently has been that the plain language of§ 177. 834(i)\nrequires an attendant to maintain an unobstructed view of the cargo tank and be within 25 feet of the\ncargo tank.\" 62 FRat 65190, (December 10, 1997). Additionally DOT explains, \"the rule clearly\nrequires an operator be in a position from which the earliest signs of problems that may occur during\nthe unloading operation are readily detectable, thereby permitting an operator to promptly take\ncorrective measures, including moving the cargo tank, actuating the remote means of automatic\nclosure of the internal self-closing stop valve, or other action, as appropriate.\" 62 FR at 44044\n(August 18, 1997). Our client's shelters enable the attendant to have an unobstructed view within 25\nfeet of the cargo tank and to activate an E-Stop from within the shelter.\nIf DOT, however, determines that the qualified person needs to be within a 25 foot walking distance\nto the cargo tank, the attendant would have to step out of the shelter during the loading operation,\nand in that case, he would no longer have immediate access to the E-Stop. An alternative of\nreconstructing shelters to be closer would require an unreasonable business expense that would not\nresult in safer or more effective \"attendance\" at the loading operation. Therefore, we hope you will\nagree that an attendant that is within a 25 foot view of the tank truck satisfies the requirement in 40\nCFR § 177 .834(i)(3) even if he is not within a 25 foot walking distance of the tank truck.\nPlease call me if you have any questions regarding this matter. We thank you in advance for your\nattention to it.\nKenneth M. Kastner\nPartner\nken.kastner@hoganlovells.com\nD + 1 202 637 5653\n\\\\DC· 0904271000003 · 3421231 v3","truncated":false,"body_characters":8392}