{"operation":"document","citation":"13-0021","title":"DHS – Transportation Security Administration — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2013-02-08","effective_on":null,"summary":"13-0021 response to DHS – Transportation Security Administration concerning 174.24, 174.26, 174.9.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0021.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0021.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0021","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2013/130021.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\nFEB 0 8 2013\nMr. William B. Thomas\nDHS - Transportation Security Administration\nCounsel for Orlando FSD & FAM SAC, Jacksonville FSD\n5850 T.G. Lee Boulevard, Suite 610\nOrlando, FL 32822-4048\nReference No.: 13-0021\nDear Mr. Thomas:\nThis is in response to your August 21, 2012 email to the Federal Railroad Administration\n(FRA) requesting clarification ofthe Hazardous Materials Regulations (HMR; 49 CFR Parts\n171-180) applicable to acceptance and inspection requirements when a rail carrier accepts a\nrail car in interchange from another rail carrier. You also describe a scenario in which a\ncarrier accepts a rail car placarded for hazardous material but is unaware they are\ntransporting a hazardous material due to receipt of an incorrect Standard Transportation\nCommodity Classification (STCC) and are seeking clarification ofthe carriers\nresponsibilities.\nAs identified in § 174.24(a), a person may not accept a hazardous material for transportation\nor transport a hazardous material by rail unless that person receives a shipping paper\nprepared in accordance Part 172, Subpart C. In addition, § 174.26(a) requires the train crew\nmust have a document that reflects the current position in the train of each rail car\ncontaining a hazardous material and§ 174.26(b) requires that a member of the crew of a train\ntransporting a hazardous material must have a copy of a document for the hazardous\nmaterial being transpmied showing the information required by Part 172, including the\nrequirements in § 172.604(b) applicable to emergency response information.\nSection 174.9(a) specifies that at each location where a hazardous material is accepted for\ntransportation or placed in a train, the carrier must inspect each rail car containing the\nhazardous material, at ground level, for required markings, labels, placards, securement of\nclosures, and leakage. Section 174.9(b) requires that for a rail car containing an amount of\nhazardous material requiring placarding, the carrier must visually inspect the rail car at\nground level for signs of tampering and § 174.9( c) prohibits a carrier from transporting a rail\ncar until the deficiencies have been corrected.\nAn inspection required by § 174.9 provides an opportunity for a rail carrier to identify any\ndiscrepancies between the shipping paper in the carriers possession and the placards and/or\nmarkings displayed on the rail car prior to transporting.\n\n<<<PAGE 2>>>\n\nIn your scenario, a carrier accepted a rail car placarded for hazardous material but did not\nreceive the accompanying shipment information due to receipt of an incorrect STCC that\nfailed to indicate the presence of a hazardous material and therefore were unaware of the\nhazardous material being transported. The accepting carrier claims that per accepted\nrailroad industry practice, they can solely rely on the STCC from the shipper when\ndetermining if the rail car contains hazardous material and had no duty to further investigate.\nAlthough the use of STCC codes via an Electronic Data Interchange (EDI) is a method\nutilized in the railroad industry for providing shipment information, the HMR do not\ncontemplate or require the use of STCC codes. The carrier's claim that the receipt of an\ninaccurate STCC exempts them from any part the provisions set forth in§§ 174.9, 174.24 or\n174.26 is incorrect. As provided above, the HMR do require that (1) the carrier receive a\nshipping paper prior to acceptance and (2) the carrier must visually inspect each rail car\ncontaining a placard. In the situation of a rail car that is displaying a hazardous material\nplacard but the carrier's shipping paper or system information does not indicate the presence\nof a hazardous material, it imposes a duty of the accepting carrier to inquire further and to\nreject the shipment if it is improperly described (see Appendix B to 49 CFR Part 209\nreferencing §174.24(a)). Further, a rail car that is placarded as containing a hazardous\nmaterial provides notice to the receiving carrier as to the contents contained within and\nshould be observed during inspection as required by § 174.9. If a carrier were to forward a\nplacarded rail car in transportation without a proper shipping paper, the carrier could be\nsubject to a civil penalty enforcement action for violation of§ 174.24(a).\nI trust this satisfies your inquiry. Please contact us if we can be of further assistance.\n[2'~~\nCharles Betts\nDirector\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nDrakeford, Carolyn (PHMSA)\nFrom: Betts, Charles (PHMSA) % l7'f.;<(p\nSent:\nFriday, January 18, 2013 4:11 PM R\" \"/\nTo:\nBillings, Delmer (PHMSA); Wolsey, Shawn (PHMSA) Drakeford, Carolyn (PHMSA) C{ I\n1 '2 .-(_ioz( Cc:\nSubject: FW: TSA intepretation letter ' .:.,;\nAttachments: lnterp for TSA-RJS edits.doc; RE: 2012/08/21 Referral of CSX EIR 2012JAX0048 to FRA\nImportance: High\nCarolyn-\nPlease log and assign the attached new request for interpretation to a specialist for response. Please place a note to the\nfile for the assigned specialist to talk to either Del or myself upon receipt. I need this expedited.\nThanks,\nCharles\nFrom: Wolsey, Shawn (PHMSA)\nSent: Friday, January 18, 2013 10:25 AM\nTo: Betts, Charles (PHMSA)\nSubject: FW: TSA intepretation letter\nHi Charles,\nHere are the original emails and the attachments.\nThanks,\nShawn\nShawn C. Wolsey\nPipeline and Hazardous Materials Safety Administration\nSenior Attorney-Advisor\nHazardous Materials Safety Law Division\n1200 New Jersey Avenue, SE.,\nPHC-10, Room E24-320\nWashington, D.C. 20590\n(202) 366-0299 (Phone)\n(202) 366-7041 (Fax)\nshawn. wolsey@dot.gov\nThis transmission may contain material that is confidential, privileged, and/or attorney work product for the sole use of the intended\nrecipient. Any review, reliance, or distribution by others or forwarding without express permission is strictly prohibited Public\navailability is to be determined pursuant to the Freedom of Information Act, 5 USC 552.\nFrom: Wolsey, Shawn (PHMSA)\nSent: Thursday, October 11, 2012 4:00 PM\nTo: Solomey, Joe (PHMSA); Betts, Charles (PHMSA)\nSubject: RE: TSA intepretation letter\n1\n\n<<<PAGE 4>>>\n\nHi everyone,\nI reviewed the letter. The only point that I do not like is the use of II outwardly placarded\" four times throughout\nthe letter. Also, I think it should be Rob's name as Chief of Standards.\nThanks,\nShawn\nShawn C. Wolsey\nPipeline and Hazardous Materials Safety Administration\nSenior Attorney-Advisor\nHazardous Materials Safety Law Division\n1200 New Jersey Avenue, SE.,\nPHC-10, Room E24-320\nWashington, D.C. 20590\n(202) 366-0299 (Phone)\n(202) 366-7041 (Fax)\nshawn .wolsey@dot.gov\nThis transmission may contain material that is corifidential, privileged, and/or attorney work product for the sole use of the intended\nrecipient. Any review, reliance, or distribution by others or forwarding without express permission is strictly prohibited Public\navailability is to be determined pursuant to the Freedom of Information Act, 5 USC 552.\nFrom: St. Peter, Joseph (FRA)\nSent: Thursday, October 11, 2012 3:16 PM\nTo: Solomey, Joe (PHMSA); Betts, Charles (PHMSA); Wolsey, Shawn (PHMSA)\nSubject: RE: TSA intepretation letter\nMr. Betts-\nPer Joe Solomey's previous, attached is an HMR interpretation letter responding to TSA's inquiry that we have put\ntogether at FRA. The initial e-mail inquiry from TSA to FRA is also attached. We had initially responded to TSA's inquiry\ninformally and pointed them to the requirements of the HMR as it relates to hazmat rail car inspections. After discussions\nwith TSA counsel it was decided to issue an HMR interpretation letter to answer their inquiry. This relates to an\nenforcement action TSA is taking against CSX railroad for an alleged violation of one of TSA's rail security-related\nregulations, and apparently they'd also like to direct CSX to the requirements of DOT's hazmat regs. Thanks, please let\nme know if FRA needs to do anything else to have the letter processed and issued by PHMSA, or if you need any more\ninformation. Thanks.\nJoe\n493-6047\nFrom: Solomey, Joe (PHMSA)\nSent: Monday, September 17, 2012 3:37 PM\nTo: St. Peter, Joseph (FRA); Betts, Charles (PHMSA); Wolsey, Shawn (PHMSA)\nSubject: Re: TSA intepretation letter\nWe should coordinate with Mr. Betts and Shawn can help from my office\nFrom: St. Peter, Joseph (FRA)\nSent: Monday, September 17, 2012 03:34PM\nTo: Solomey, Joe (PHMSA)\n2\n\n<<<PAGE 5>>>\n\nCc: Stewart, Roberta (FRA)\nSubject: TSA intepretation letter\nJoe-\nAwhile back, a TSA attorney in Florida was looking for informal guidance from FRA on the hazmat regs. as they relate to a\nrailroad's responsibility to compare the placards on rail cars they haul in a train to the information listed on a car's\nshipping paperwork. We provided him some informal advice on the requirements of the HMR and how we handle\nenforcement action in situations where discrepancies exist between placards and shipping paperwork. His inquiry was\nrelated to a TSA enforcement case against CSX. As the matter has progressed, he now desires a formal interpretation for\nhis use in the subsequent AU proceeding against CSX (in lieu of attempting to try to use FRA attorneys or HM specialists as\n\"expert opinion witnesses\", which we told him wasn't really possible). I was going to put an interpretation letter\ntogether, but obviously wanted to coordinate with your office as PHMSA typically issues HMR interpretations. If you\ncould let me know who to coordinate with I would be appreciative, or, if this is something PHMSA prefers that FRAjust\nissue to TSA directly, that is fine also, just let me know. Thanks.\nJoe\nFrom: joseph.st.peter@dot.gov [mailto:joseph.st.peter@dot.gov]\nSent: Wednesday, August 22, 2012 9:20AM\nTo: Thomas, William B <TSA OCC>\nCc: john.alexy@dot.gov; roberta.stewart@dot.gov\nSubject: RE: 2012/08/21 Referral of CSX EIR 2012JAX0048 to FRA\nWilliam-\nAs follow up to our discussion, at the point a carrier accepts any rail car containing hazmat for transportation, they are\nrequired by 174.9 to inspect that car at ground level for proper placarding, labeling, and marking (amongst other things\nrequired to be inspected). If the shipping documentation a carrier has for the rail car does not match the\nplacards/markings displayed on that car, they are prohibited by 174.9 (and 174.50) from transporting the rail car until the\ndiscrepancy is resolved. This same requirement also applies anytime the railroad car places the car into a train (meaning\nin your situation, anytime CSX may have placed the car into a subsequent train the inspection requirement would have\nbeen triggered again). Unfortunately, FRA routinely has to take enforcement action based on this very fact pattern,\nwhere the shipping paperwork in the possession of a rail carrier and/or its train crew do not match up with the placards\nbeing displayed on the rail car containing hazmat. As mentioned below, the ground level inspection requirement at 174.9\nis the railroad's opportunity to identify and correct these mistakes before transporting a hazmat rail car. Thanks, please\nlet me know if you need anything else.\nJoe\nFrom: St. Peter, Joseph (FRA)\nSent: Wednesday, August 22, 2012 8:54AM\nTo: 'Thomas, William B <TSA OCC>'\nCc: Alexy, Karl (FRA); Stewart, Roberta (FRA)\nSubject: RE: 2012/08/21 Referral of CSX EIR 2012JAX0048 to FRA\nMr. Thomas-\n49 CFR 174.9 establishes a railroad's duty with regard to accepting placarded hazmat cars for transportation. When a\nrailroad accepts a hazmat rail car, or places it in a train, 174.9(a) states \" .... the carrier must inspect each rail car containing\nthe hazardous material, at ground level, for required markings, labels, placards, securement of closures, and\nleakage.\" Section 174.9(b) contains additional requirements for rail cars with placards, requiring that they must be\n3\n\n<<<PAGE 6>>>\n\ninspected for signs of tampering. If deficiencies are found during this inspection, 174.9(c) prohibits a carrier from\ntransporting the car until the deficiencies have been corrected. FRA often takes enforcement action where a car was\nplacarded in one manner, but the railroad's paperwork does not parallel the information conveyed by those placards, as\nvia 49 CFR 174.24 and 174.26, the railroad and the transporting train crew is required to have accurate shipping papers\nand emergency response contact info for each shipment of hazmat that is transported. The ground level inspection\nrequirement at section 174.9 is the railroad's opportunity to compare their shipping paperwork to the placards displayed\non the rail cars containing hazmat. Please give me a call if I can provide any other info. Thanks.\nJoe\nJoe St. Peter\nTrial Attorney\nFederal Railroad Administration\n1200 New Jersey Avenue, SE\nRoom W31-208\nWashington, DC 20590\nTel: (202) 493-6047\nFax: (202) 493-6068\njoseph.st.peter@dot.gov\nFrom: Thomas, William B <TSA OCC> [mailto:William.Thomas@tsa.dhs.gov]\nSent: Tuesday, August 21, 2012 9:58 PM\nTo: St. Peter, Joseph (FRA); Stewart, Roberta (FRA); Alpert, Daniel (FRA)\nCc: Rader, Robert (FRA); Alexy, Karl (FRA); Kasminoff, David <TSA OCC>; Gorton, Scott; Secrest, Curt; Loschin, Tina\nSubject: RE: 2012/08/21 Referral of CSX EIR 2012JAX0048 to FRA\nMr. St. Peter, Ms Stewart, Mr. Alpert, Mr. Alexy, and Mr. Rader,\nTHANK YOU for all for your assistance. In the course of our TSA enforcement efforts David Kasminoff discussed some\nissues that might be relevant to your regulatory activities. In addition I am particularly interested the general rule of\nthumb noted by Dan Alpert, to the effect that in situations in which railroads pull cars from\ninterchange: railroads do so at their own peril if they don't inspect the equipment and accompanying\npaperwork that they are accepting. In our case CSXT accepted a rail car with an explosive placard on it but\nappear to be claiming that the STCC 3722221 was wrong and did not alert their electronic system so they would\nknow that they were transporting hazmat. They appear to be claiming that per accepted RR practice they could\n' ---~ ~\n~ust rely on the STCC from the shipper that the car did not contair'i-anytnTngr1azardous and had no duty to\ninvestigate m to find they were transporting in excess of 5,000 lbs of class 1.1 explosives. [Per the shipping\ndocuments it was actually over 100,000 lbs of explosives.] Our Inspectors advise me of a duty to walk the train\nupon receipt of new cars and note any cars with explosive placards. I am trying to document the responsibility\nfor such action. If that car had a non-hazmat STCC I believe there would be a duty to check further to\ndetermine how much explosives they were carrying?\nI will call attorney Joe St. Peter tomorrow to discuss.\nRegards and thanks to all,\nBill Thomas\nWilliam B. Thomas\nDHS- Transportation Security Administration\n4\n\n<<<PAGE 7>>>\n\nCounsel for Orlando FSD & FAM SAC, Jacksonville FSD\n5850 T.G. Lee Boulevard, Suite 610\nOrlando, Florida 32822-4410\nDesk- (407) 563-4048 Cell -(407) 697-1912\nWilliam.B.Thomas@DHS.gov\nThis email may contain communications between attorney and client, communications that are part of the agency\ndeliberative process, or attorney work product, all of which are privileged and not subject to disclosure outside the agency\nor to the public. Please consult with the Field Counsel Office, as listed above, before disclosing any information contained\nin this email.\nFrom: joseph.st.peter@dot.gov [mailto:joseph.st.peter@dot.gov]\nSent: Tuesday, August 21, 2012 8:25 PM\nTo: roberta.stewart@dot.gov; daniel.alpert@dot.gov; Thomas, William B <TSA OCC>; Kasminoff, David <TSA OCC>\nCc: robert.rader@dot.gov; john.alexy@dot.gov\nSubject: Re: 2012/08/21 Referral of CSX EIR 2012JAX0048 to FRA\nI am in the office tomorrow and available to discuss if needed at 202-493-6047. Thanks.\nJoe\nFrom: Stewart, Roberta (FRA)\nSent: Tuesday, August 21, 2012 07:30 PM\nTo: Alpert, Daniel (FRA); 'Wiltiam.Thomas@tsa.dhs.gov' <William.Thomas@tsa.dhs.gov>; 'David.Kasminoff@tsa.dhs.gov'\n<David.Kasminoff@tsa.dhs.gov>\nCc: Rader, Robert (FRA); Alexy, Karl (FRA); St. Peter, Joseph (FRA)\nSubject: Re: 2012/08/21 Referral of CSX EIR 2012JAX0048 to FRA\nI believe Bob Rader, the FRA Hazmat Specialist in Region 3, spoke at length to Tina Loschin (sp?) today and answered all\nof her questions about this matter. Please let us know how we can be of further assistance.\n-Roberta Stewart\nFrom: Alpert, Daniel (FRA)\nSent: Tuesday, August 21, 2012 06:19 PM\nTo: Thomas, William B <TSA OCC> <William.Thomas@tsa.dhs.gov>; Kasminoff, David <TSA OCC>\n<David.Kasminoff@tsa.dhs.gov>\nCc: Rader, Robert (FRA); Stewart, Roberta (FRA); Alexy, Karl (FRA); St. Peter, Joseph (FRA)\nSubject: RE: 2012/08/21 Referral of CSX EIR 2012JAX0048 to FRA\nMr. Thomas,\nI'm sorry for not getting back to you and David sooner. Roberta is on travel, and I've been in meetings all day\n(actually interviewing candidates for an open FTE).\nBy this e-mail, I'm asking Joe St. Peter, one of the attorneys who handle HMT issues for the Office of Chief\nCounsel, to provide assistance to you. I'm also copying Karl Alexy, who is the staff director for FRA's HMT\nDivision, so that he may arrange for his office to provide support as needed.\n5\n\n<<<PAGE 8>>>\n\nAs I am not familiar with the specifics of this matter, I can only offer the general rule of thumb that I've applied\nto situations in which railroads pull cars from interchange: railroads do so at their own peril if they don't\ninspect the equipment and accompanying paperwork that they are accepting. But of course there is a body of\nFederal law that applies more specifically (and affirmatively), covering not only HMT but also mechanical and\nother safety issues, and which we should be able to identify for you.\nI assume that at this stage you are seeking FRA's assistance informally, and not asking for an affidavit or for FRA\nto provide testimony, although it could come to the should the case not settle (and at which time higher\nmanagerial levels here would need to be more closely involved)? Thanks.\nDan Alpert\nDeputy Assistant Chief Counsel for Safety\n(202) 493-6026\nFrom: Thomas, William B <TSA OCC> [mailto:William.Thomas@tsa.dhs.gov]\nSent: Tuesday, August 21, 2012 5:02 PM\nTo: Alpert, Daniel (FRA); Stewart, Roberta (FRA)\nCc: Rader, Robert (FRA)\nSubject: FW: 2012/08/21 Referral of CSX EIR 2012JAX0048 to FRA\nAre you available for a brief discussion?\nRegards and thanks,\nWilliam B. Thomas\nDHS- Transportation Security Administration\nCounsel for Orlando FSD & FAM SAC, Jacksonville FSD\n5850 T.G. Lee Boulevard, Suite 610\nOrlando, Florida 32822-4410\nDesk- (407) 563-4048 Cell -(407) 697-1912\nWilliam.B.Thomas@DHS.gov\nThis email may contain communications between attorney and client, communications that are part of the agency\ndeliberative process, or attorney work product, all of which are privileged and not subject to disclosure outside the agency\nor to the public. Please consult with the Field Counsel Office, as listed above, before disclosing any information contained\nin this email.\nFrom: Su, Emily <TSA OCC>\nSent: Tuesday, August 21, 2012 4:28 PM\nTo: Thomas, William 8 <TSA OCC>\nSubject: RE: 2012/08/21 Referral of CSX EIR 2012JAX0048 to FRA\nThank you. Have you been able to set up a time to talk to FRA counsel regarding questions about requirements to walk\ntrains?\nEmily H. Su\nAssistant Chief Counsel, Civil Enforcement\nTransportation Security Administration\n(571) 227-2305\n6\n\n<<<PAGE 9>>>\n\nThis email might contain communications between attorney and client, communications that are part of the agency deliberative process, or attorney-work\nproduct, all of which are privileged and not subject to disclosure outside the agency or to the public. Please consult with the Office of Chief Counsel before\ndisclosing any information contained in this email.\nFrom: Thomas, William B <TSA OCC>\nSent: Tuesday, August 21, 2012 3:44 PM\nTo: Su, Emily <TSA OCC>; Kasminoff, David <TSA OCC>; Gorton, Scott\nCc: Powell, Barbara <TSA OCC>\nSubject: 2012/08/21 Referral of CSX EIR 2012JAX0048 to FRA\nCurt Secrest sent EIR 2012JAX0048 to FRA. He also forwarded the email! sent to FRA Counsel last evening [attached].\nInformal but effectively completed in a timely manner.\nr/\nWBT\nDesk- (407) 563-4048 Cell-(407) 697-1912\nWilliam.B.Thomas@DHS.gov\nFrom: Secrest, Curt\nSent: Tuesday, August 21, 2012 2:41 PM\nTo: Thomas, William B <TSA OCC>\nSubject: FW: CSX\nMy message to Bob Rader.\nFrom: Secrest, Curt\nSent: Tuesday, August 21, 2012 2:05 PM\nTo: robert.rader@dot.gov\nSubject: CSX\nHi Bob:\nGood talking to you. here's the background on what we were discussing. PW to follow.\nCurt\nCurt Secrest\nTSA\nRegional Security Inspector-Surface\n14201 Pecan Park Road\nJacksonville, FL 32218\ncurt.secrest@dhs.gov\noffice: 904 380-4075\ncell: 904 874-7224\n7","truncated":false,"body_characters":20773}