{"operation":"document","citation":"15-0229R","title":"Idaho State Police — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2016-11-03","effective_on":null,"summary":"15-0229R response to Idaho State Police concerning 172.202.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-15-0229r.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-15-0229r.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-15-0229r","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2016/150229R.pdf","body":"<<<PAGE 1>>>\n\n5205 S. 5* St.\nPocatello, ID 83204\nRef. No.: 15-0229R\nDear Mr. Wright,\nThis is in reference to PHMSA's response to your request for interpretation Ref. No. 15-0229\nof the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) issued on June 6,\n2016. PHMSA received a letter in response to the June 6 interpretation from Professional\nEmergency Resource Services (PERS) noting a previously issued letter of interpretation\nissued on September 17, 2008 (Ref. No. 08-0080) with alternate guidance. After further\nconsideration, interpretation letter Ref. No. 15-0229 has been superseded by this revised\nletter.\nIn your original request, you asked if the term \"1CTMV\" representing \"one cargo tank motor\nvehicle\" may be used on a shipping paper to satisfy indication of the total quantity of\nhazardous materials and the number and type of packages as required by §§ 172.202(a)(5) and\n(a)(7) respectively. The scenario described two cargo tanks attached to a motor vehicle. In the\nJune 6, 2016 letter, PHMSA stated that the term \"1CTMV\" would not satisfy either the\nrequirement in §§ 172.202(a)(5) or (a)(7) on the basis that a \"CTMV\" does not meet the\ndefinition of a package.\nBased on a review of interpretation letter Ref. No. 08-0080, PHMSA has reconsidered its\nposition in the June 6, 2016 letter. In the September 17, 2008 letter, PHMSA advised that a\nCTMV consisting of two separate cargo tanks may be described on a shipping paper with the\nphrase \"cargo tank motor vehicle\" indicating the type of package. Consistent with the 2016\nletter, PHMSA maintains that the term \"cargo tank\" most appropriately describes the type of\npackage; however, the term \"cargo tank motor vehicle\" or \"CTM\" is acceptable.\nIf you need additional assistance, please contact the Standards and Rulemaking Division at\n(202) 366-8553.\nSincerel:\nRuse\nBen Supko\nSenior Regulations Officer\nStandards and Rulemaking Division\n\n<<<PAGE 2>>>\n\n\n\n<<<PAGE 3>>>\n\nStandards and Rulemaking Division\nPipeline and Hazardous Materials Safety Administration\nAttn: PHH-10, U.S. Department of Transportation\nEast Building, 1200 New Jersey Avenue, SE, Washington, DC 20590-0001\nGreetings,\nTwo formal interpretations have been recently published that appear to be at variance with the\nlanguage of the law, as well as, with long standing previously published interpretations. These\nrecent interpretations are entirely unexpected and if sustained represent a substantial\ncompliance problem for shippers and carriers.\nInterpretation # 15-0229\nThe above referenced interpretation dated June 6, 2016 is contrary to a previous interpretation\n08-0080 dated September 17, 2008 which continues to be posted on the PHMSA website.\nInterpretation 15-0229 appears to be arbitrary and not based on any rulemakings that have\noccurred since interpretation 08-0080 was issued. Interpretation 15-0229 fails to mention that\nthis provision has been interpreted differently in a previous interpretation and fails to\nacknowledge the existence of interpretation 08-0080.\nInterpretation 15-0229 creates a significant compliance problem for numerous companies that\nproduce shipping papers that are generated based upon current regulations and previous\ninterpretations, particularly 08-0080. Interpretation 08-0080 plainly recognizes a \"cargo tank\nmotor vehicle\" as a type of package. Interpretation 08-0080 includes language stating \"if there is\nsome indication of the type of package on each shipping paper (e.g., \"cargo tank motor\nvehicle\", \"cargo tank\", or \"cargo tank compartment\"). Interpretation 08-0080 has clearly\nindicated that 1 \"cargo tank motor vehicle\" sufficiently describes the number and type of\npackaging when appropriate. Other interpretations have verified that \"CTMV\" is an appropriate\nabbreviation for \"cargo tank motor vehicle\".\nWe request that interpretation 15-0229 be removed due to misinterpretation of long standing\nregulations and previous interpretations that satisfactorily provide for safety. We support\ninterpretation 08-0080 and agree that identifying a \"cargo tank motor vehicle\" as a package type\nis not confusing or ambiguous and meets the letter and intent of the current regulation. We\ncontend that if PHMSA, at this point in time, intends to have the regulation mean something\nother than what interpretation 08-0080 has long maintained that it would constitute a regulatory\nchange and would be subject to the publication of an NPRM that would provide an opportunity\nfor comments by interested parties, and further, if a final rule was later published that effectively\nchanged the rule that an appropriate period of time to comply with the new requirement would\nbe provided\n\n<<<PAGE 4>>>\n\nbe needed. Unfortunately, Interpretation 15-0187 continues to be posted on the PHMSA\nwebsite in spite of it containing incorrect and misleading information. Our request for the\ndocument's removal have up to now been unsuccessful. (See attached letter dated Feb 26,\n2016)\nSubsequent to the above verification, we're receiving reports that there has been an increase in\nthe number of citations issued by local and State law enforcement officials and that penalties\nare being assessed for using the description, \"NA1993, Diesel fuel, Combustible liquid, PG\nI!!\" on shipping papers. We believe that this increase is a result of the continued posting of\ninterpretation 15-0187. It seems to be virtually impossible to develop an effective legal defense\nfor the use of this description while interpretation 15-0187 is posted on the PHMSA website.\nNumerous offerors, including refineries and terminals nationwide, are using the description\nNA1993, Diesel fuel, Combustible liquid, PG III and the continued publication of interpretation\n15-0187 is causing a difficult legal problem for shippers and carriers and interfering with\ncommerce. We are aware of companies that are paying fines for the alleged violation, while\nbeing in compliance all along. Once again, we appeal that interpretation 15-0187 be removed\nfrom the PHMSA website immediately and that a new interpretation be published as soon as\npossible in order to correct the misinterpretation of the regulations that apply to the reclassifying\nof a class 3 to a combustible liquid and shipping paper descriptions.\nThank you, we appreciate your assistance and hope for your help in resolving this problem.\nSincerely,\nBick Hayner\nRick Heylmun\nOperations Manager\nPERS","truncated":false,"body_characters":6386}