{"operation":"document","citation":"18-0155","title":"Canal Terminology Company — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2019-06-24","effective_on":null,"summary":"18-0155 response to Canal Terminology Company concerning 171.2, 171.7, 172.102, 173.24, 174.57.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0155.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0155.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0155","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/71751/180155.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 ,New Jersey Avenue, SE\nWashington, DC 20590\nJUN 2 4 2019\nCindy Van Duyne\nCompliance Manager\nCanal Terminology Company\n23213 S. Youngs Road\nChannahon,IL 60410\nReference No. 18:..0155\nDear Ms. Van Duyne:\nThis letter is in response to your December 6, 2018, email and subsequent phone conversation\nrequesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180)\napplicable to residue of molten sulfur on tank cars during transloading. You describe a scenario\nin which your company, Canal Terminology Company (CTC), performs the following activities\nduring transloading operations:\n• Sets up tank cars to receive molten sulfur;\n• Secures the tank cars for shipment after being filled with molten sulfur;\n• Serves as the shipper of record on shipping papers.\nYou state that an outside carrier conducts the physical transfer of the molten sulfur from the\ncargo tanks to the tank cars. You ask whether CTC would be cited for a violation if there is\nexcessive amount of molten sulfur on the exterior of the tank car. As clarified in our phone\nconversation, you indicate that the residue of molten sulfur is from either: (1) a previous\nshipment (i.e., residue is found on an empty tank car prior to transloading); or (2) after the tank\ncar is filled by the outside carrier.\nIn accordance with § 171.2( e ), no person may offer or accept a hazardous material for\ntransportation in commerce unless the hazardous material shipment properly complies with the\nHMR. Section 173.24(b)(4) states that there will be no hazardous material residue adhering to\nthe outside of the package during transport: and§ 174.57 specifies that all hazardous materials\nleaked from a rail car must be carefully removed. Therefore, no package should be offered or\naccepted for transportation unless it conforms to the HMR, which includes ensuring there is no\nresidue outside of the tank car. Regardless of the state of the tank cars from a previous shipment\nor another entity performing the transloading, since your company is acting as a shipper and\ncarrier (by accepting a transload), you have the responsibility for ensuring the hazardous material\nis in a condition for shipment as required or authorized by the HMR.\n\n<<<PAGE 2>>>\n\nHowever, as noted in your request, on March 11, 2013, PHMSA published a final rule titled\n\"Hazardous Materials; Miscellaneous Amendments (RRR)\" [HM-218G; 78 FR 15303] that\naddressed a petition for rulemaking (P-1581), which: (1) added The Sulphur Institute's (TSI)\n\"Molten Sulphur Rail Tank Car Guidance\" document to Table 1 of§ 171. 7 as a material not\nincorporated by reference; and (2) created a new special provision Rl (see § 172.102) to\nreference offerors of tank cars containing sulfur, molten, or residue of sulfur, molten to TSI's\ndocument to identify tank cars that may pose a risk in transportation due to the accumulation of\nformed, solid sulfur on the outside of the tank. In the HM-218G final rule, PHMSA specifies\nthat although§§ 173.24(b)(4) and 174.57 indicate that no residue is permitted on the outside of\nthe tank car, \"minimal levels of sulfur residue on the outside of a rail tank car pose minimal\ntransportation risk due to physical state, chemical properties, and amount\" and that there are\ndifficulties in removing dried sulfur residue from the tank car while in transportation.\nRegarding enforcementactions, in general, whenever a hazardous material has not been offered\nor transported in compliance with the HMR, the Department of Transportation will attempt to\nidentify and bring an enforcement proceeding against the person who offered the noncomplying\nshipment into transportation. See the enclosed formal interpretation of regulations regarding\ncarrier responsibility when accepting hazmat for transportation in commerce (June 4, 1998;\n63 FR 30411).\nI hope this information is helpful. Please contact us ifwe can be of further assistance.\n\n<<<PAGE 3>>>\n\nFederal Register/Vol. 63, No. 107 /Thursday, June 4, 1998/Rules and Regulations 30411\nthe criteria for a significant regulatory 12. Neurological (11.00 and 111.00): July 1,\naction under Executive Order 12866. 1999.\nThus, it was not subject to 0MB review. * * * * *\nRecmlatorv Flexibility Act 15. Immune System (14.00 and 114.00):\nr,-- ✓ July 1, 1999.\nWe certify that this regulation will not * * * * *\nhave a significant economic impact on [FR Doc. 98-14599 Filed 6-3-98; 8:45 am]\na substantial number of small entities.\nBILLING CODE 4190-29-P\nTherefore, a regulatory flexibility\nanalysis as provided in the Regulatory\nFlexibility Act, as amended, is not\nDEPARTMENT OF TRANSPORTATION\nrequired.\nPaperwork Reduction Act\nResearch and Special Programs\nAdministration\nThis regulation imposes no reporting/\nrecordkeeping requirements\nnecessitating clearance by 0MB.\n(Catalog of Federal Domestic Assistance\nProgram Nos. 96.001, Social Security-\n49 CFR Parts 107,171,172, 173, 174,\n175,176,177\n[Notice No. 9~]\nDisability Insurance; 96.002, Social Security-\nRetirement Insurance; 96.004, Social\nSecurity-Survivors Insurance; 96.006,\nSupplemental Security Income)\nList of Subjects in 20 CFR Part 404\nAdministrative practice and\nprocedure, Blind, Disability benefits,\nHazardous Materials: Formal\nInterpretation of Regulations\nAGENCY: Research and Special Programs\nAdministration (RSPA), DOT.\nACTION: Formal interpretation of\nregulations.\nOld-Age, Survivors and Disability\nInsurance, Reporting and recordkeeping\nrequirements, Social security.\nDated: May 27, 1998.\nKenneth S. Apfel,\nCommissioner of Social Security.\nFor the reasons set forth in the\npreamble, part 404, subpart P, chapter\nIII of title 20 of the Code of Federal\nRegulations is amended as set forth\nbelow.\nPART 404-FEDERAL OLD-AGE,\nSURVIVORS AND DISABILITY\nINSURANCE (1950-)\nSubpart P-{Amended]\n1. The authority citation for subpart P\nof part 404 continues to read as follows:\nAuthority: Secs. 202, 205(a), (b), and (d)-\n(h), 216(i), 221(a) and (i), 222(c), 223, 225,\nand 702(a)(5) of the Social Security Act (42\nU.S.C. 402, 405(a), (b), and (d)-(h), 416(1),\n421(a) and (i), 422(c), 423, 425, and\n902(a)(5)); sec. 211(b), Pub. L. 104-193, 110\nStat. 2105, 2189.\n2. Appendix 1 to subpart P of part 404\nis amended by revising items 1, 3, 11 ,\n12, and 15 of the introductory text\nbefore Part A to read as follows:\nAppendix 1 to Subpart P-Listlng of\nImpairments\n* * * * *\n1. Growth Impairment (100.00): July 1,\n1999.\n* * * * *\n3. Special Senses and Speech (2.00 and\n102.00): July 1, 1999.\n* * * * *\n11. Multiple Body Systems (110.00): July 1,\n1999.\nSUMMARY: This document publishes a\nformal interpretation of the Hazardous\nMaterials Regulations (HMR) concerning\nthe responsibilities of a carrier when\naccepting hazardous materials for\ntransportation in commerce. This\ninterpretation is being published in\norder to facilitate better public\nunderstanding and awareness of the\nHMR.\nEFFECTIVE DATE: June 4, 1998.\nFOR FURTHER INFORMATION CONTACT:\nFrazer C. Hilder, Office of the Chief\nCounsel, Research and Special Programs\nAdministration, U.S. Department of\nTransportation, 400 Seventh Street, SW,\nWashington, DC 20590-00001 ;\ntelephone 202-366- 4400.\nSUPPLEMENTARY INFORMATION: As part of\nits implementation of the Federal\nhazardous material transportation law,\n49 U.S.C. 5101 et seq., RSPA issues the\nHazardous Materials Regulations\n(HMR), 49 CFR parts 171-180. From\ntime to time, RSPA's Chief Counsel\nissues formal interpretations of the\nHMR. These interpretations generally\ninvolve multimodal issues and are\ncoordinated with the other DOT\nagencies which, together with RSP A,\nenforce the HMR: Federal Aviation\nAdministration, Federal Highway\nAdministration, Federal Railroad\nAdministration, and United States Coast\nGuard. This document publishes a Chief\nCounsel's interpretation concerning the\nresponsibilities of a carrier when\naccepting hazardous materials for\ntransportation in commerce. This\ninterpretation addresses issues raised in\na letter by Mr. E.A. Altemos, ofHMT\nAssociates, and is consistent with an\nAugust 19, 1997 written response to Mr.\nAltemos by RSPA's Associate\nAdministrator for Hazardous Materials\nSafety.\nIn addition to these infrequent formal\ninterpretations by RSPA's Chief\nCounsel, RSPA's Office of Hazardous\nMaterials Standards provides\ninformation and informal clarifications\nof the HMR on an ongoing basis,\nthrough (1) a telephonic information\ncenter (1-800-467-4922) to answer oral\nquestions and (2) informal written\ninterpretations or clarifications in\nresponse to written inquiries. RSPA's\nformal interpretations and informal\nletter clarifications (and additional\ninformation concerning the HMR) are\nalso available through the Hazmat\nSafety Homepage at \"http://\nhazmat.dot.gov.\" In addition, some of\nRSPA's interpretations and\nclarifications may be reproduced or\nsummarized in selected trade\npublications.\nFurther information concerning the\navailability of informal guidance and\ninterpretations of the HMR is set forth\nin 49 CFR 107.14. RSPA believes that\npublication of its interpretations should\npromote a better understanding of the\nHMR and improve compliance with the\nHMR.\nIssued in Washington, DC, on May 28,\n1998.\nJudith S. Kaleta,\nChief Counsel.\n[Int. No. 98-1]\nBackground\nMr. E.A. Altemos, HMT Associates,\nrequested clarification of requirements in the\nHMR concerning an air carrier's acceptance\nof packages.containing hazardous materials.\nThis inquiry concerned only the carrier's\nresponsibilities relating to hazardous\nmaterials offered by another person, and not\na carrier's transportation of i~ own materials\nor products. (For information on an air\ncarrier's transportation of its own company\nmaterials, or \"COMAT,\" see \"COMAT\nFACTS\" in RSPA's January 1998 Safety\nAlert, available on the Hazmat Safety\nHomepage.)\nAlthough Mr. Altemos's question was\nposed in the context of air transportation, the\nHMR requirements discussed in RSPA's\ninterpretation apply to carriers by all modes\nof transportation.\nInterpretation\nBasic requirements in the HMR set forth in\n49 CFR 171.2(a) and (b), and applicable to\ncarriers in all modes of transportation, are\nthat no person may\naccept a hazardous material for\ntransportation in commerce unless * * * the\nhazardous material is properly classed,\ndescribed, packaged, marked, labeled, and in\ncondition for shipment as required or\n\n<<<PAGE 4>>>\n\n30412 Federal Register/Vol. 63, No. 107 /Thursday, June 4, 1998/Rules and Regulations\nauthorized by applicable requirements of [the\nHMR], or an exemption, approval, or\nregistration issued under [the HMR) * * *\n[or]\ntransport a hazardous material in commerce\nunless * * * the hazardous material is\nhandled and transported in accordance with\napplicable requirements of [the HMRJ, or an\nexemption, approval, or registration issued\nunder [the HMR] * * *\nA carrier's acceptance and transportation\nof hazardous materials can involve several\ndifferent situations, including the following\ntwo ends of the spectrum:\n1. the shipment is declared by the offeror,\nin one manner or another, to contain\nhazardous materials and complies (in whole\nor in part) with requirements in the HMR; or\n2; whether intentionally or\nunintentionally, the shipment is not declared\nby the offeror to contain hazardous materials,\nand no attempt has been made to comply\nwith the HMR (the \"undeclared\" or \"hidden\"\nshipment).\nThe Secretary of Transportation has\ndelegated to agencies within the Department\n(Federal Aviation Administration, Federal\nHighway Administration, Federal Railroad\nAdministration, United States Coast Guard,\nand Research and Special Programs\nAdministration), the authority in 49 U.S.C.\n5123 to assess a civil penalty against any\nperson who \"knowingly violates\" any\nrequirement in the HMR, including the\nprovisions in§ 171.2 (a) and (b) quoted\nabove. Section 5123(a) provides that.a person\n\"acts knowingly\" when\n(A) the person has actual knowledge of the\nfacts giving rise to the violation; or\n(B) a reasonable person acting in the\ncircumstances and exercising reasonable care\nwould have that knowledge.\nAccordingly, a <;arrier knowingly violates\nthe HMR when the carrier accepts or\ntransports a hazardous material with actual\nor constructive knowledge that a package\ncontains a hazardous material which has not\nbeen packaged, marked, labeled, and\ndescribed on a shipping paper as required by\nthe HMR. This means that a carrier may not\nignore readily apparent facts that indicate\nthat either (1) a shipment declared to contain\na hazardous material is not properly\npackaged, marked, labeled, placarded, or\ndescribed on a shipping paper, or (2) a\nshipment actually contains a hazardous\nmaterial governed by the HMR despite the\nfact that it is not marked, labeled, placarded,\nor described on a shipping paper as\ncontaining a hazardous material.\nThe Department's October 4, 1977\ninterpretation concerning 49 CFR 175.30\n(reproduced below) relates to the first\nsituation in the above paragraph, i.e., when\nan air carrier receives a shipment\naccompanied by a shipping paper containing\na shipper's certlflcation that hazardous\nmaterials within the shipment have been\nclassed, packaged, marked, labeled and\naccurately described as requµ-ed . See 49 CFR\n172.204. Whenever, in the course of\nexamining the shipping paper and\nperforming the required visual inspection of\nthe package, an air carrier has reason to know\nof discrepancies, the carrier may not simply\nrely on the shipper's certlflcation.\nIn the case of an undeclared or hidden\nshipment, all relevant facts must be\nconsidered to determine whether or not a\nreasonable person acting in the\ncircumstances and exercising reasonable care\nwould realize the presence of hazardous\nmaterials. In an enforcement proceeding, this\nis always a question of fact, to be determined\nby the fact-finder. Because innumerable fact\npatterns may exist, it is not practicable to set\nforth a list of specific criteria to govern\nwhether or not the carrier has sufficient\nconstructive knowledge of the presence of\nhazardous materials within an undeclared or\nhidden shipment to find a knowing violation\noftheHMR.\nInformation concerning the contents of\nsuspicious packages must be pursued to\ndetermine whether hazardous materials have\nbeen improperly offered. A carrier's\nemployees who accept packages for\ntransportation must be trained to recognize a\n\"suspicious package,\" as part of their\nfunction-specific training as specified in 49\nCFR 172. 704(a)(2), because the legal standard\nremains the knowledge that a reasonable\nperson acting in the circumstances and\nexercising reasonable care would have.\nBecause this standard applies to all modes of\ntransportation, a single training program and\na uniform screening process can be\ndeveloped for all of a company's employees\ninvolved in surface or air transportation.\nAt the same time, an offeror who fails to\nproperly declare (and prepare) a shipment of\nhazardous materials bears the primary\nresponsibility for a hidden shipment.\nWhenever hazardous materials have not been\nshipped in compliance with the HMR, DOT\ngenerally will attempt to identify and bring\nan enforcement proceeding against the\nperson who first caused the transportation of\na noncomplying shipment. The procedures\napplicable to DOT civil penalty enforcement\ncases procedures are set forth in 14 CFR\n13.16 (FAA); 33 CFR part 1, subpart 1.07\n(USCG); 49 CFR part 109, subpart B (FRA);\n49 CFR part 107, subpart D (RSPA); and 49\n.CFR part 386 (FHWA).\nTo the extent that any carrier, regai:dless of\nthe mode of transportation, is truly\n\"innocent\" in accepting an undeclared or\nhidden shipment of hazardous materials, it\nlacks the knowledge required for assessment\nof a civil penalty. However, when a carrier\nacts \"knowingly,\" as defined in 49 U.S.C.\n5123(a), it must be considered subject to civil\npenalties. RSPA rejects any suggestion that a\ncarrier would be deemed to have\n\"knowingly\" accepted a hazardous material\nfor transportation, and be subject to civil\npenalties under 49 U.S.C. 5123, only when\nthe material is described as a hazardous\nmaterial on a shipping paper or other\ncommercial documentation, or the package is\nmarked or labeled in a manner as prescribed\nby the HMR. That approach would\nimproperly limit a carrier's responsibility to\nsituations involving a \"deciared\" shipment.\nDEPARTMENT OF TRANSPORTATION\nOffice of the Secretary\nOctober 4, 1977.\nSubj: Air Carrier's Responsibility for\nInspection of Hazardous Materials\nPackages.\nFrom: Assistant General Counsel for\nMaterials Transportation Law.\nTo: Director, Transportation Safety Institute,\nTES-15\nThis is in response to your request of\nAugust 25, 1977, for our opinion as to\nwhether an air carrier has a specific\nregulatory obligation to inspect hazardous\nmaterials packages prior to acceptance for air\ntransportation to insure the shipper's\ncompliance with specific regulatory\nrequirements of parts 1 73 and 178. With the\nquestion, you have supplied your analysis\nand conclusion that except for the physical\nintegrity inspection provided for in\n§ 175.30(b) there is no duty on the air carrier\nto inspect hazardous materials packages prior\nto acceptance for transportation in order to\ndetermine compliance with the requirements\nof parts 173 and 178. Thus, it is your opinion\nthat the air carrier may rely on the shipper's\ncertification accompanying the shipment.\nSection 175.30 prescribes the requirements\nthat must be met before an air carrier accepts\na shipment of hazardous materials for\ntransportation. In achieving compliance with\nthese requirements, the air carrier must,\nunder paragraph (a), examine the shipment\nagainst the information supplied on the\nshipping paper, and must, under paragraph\n(b), make a visual inspection for leaks and\ndamaged packaging. Consequently, I agree\nwith your analysis and conclusion that the\nregulations permit the air carrier to rely on\nthe information supplied on the shipping\npaper, unless, in complying with paragraphs\n(a) and (b), he has reason to know that there\nare discrepancies.\n[FR Doc. 98-14561 Filed 6- 3- 98; 8:45 am)\nBILLING CODE 491~\nDEPARTMENT OF COMMERCE\nNational Oceanic and Atmospheric\nAdministration\n50 CFR Part 679\n[Docket No. 961107312-7021-02; I.D.\n052098B]\nFisheries of the Exclusive Economic\nZone Off Alaska; Bycatch Rate\nStandards for the Second Half of 1998\nAGENCY: National Marine Fisheries\nService (NMFS), National Oceanic and\nAtmospheric Administration (NOAA),\nCommerce.\nACTION: Pacific halibut and red king crab\nbycatch rate standards; request for\ncomments.\nSUMMARY: NMFS announces Pacific\nhalibut and red king crab bycatch rate\nstandards for the second half of 1998.\nPublication of these bycatch rate\nstandards is required under regulations\n\n<<<PAGE 5>>>\n\nJanuary, lkeya CTR (PHMSA)\nFrom: INFOCNTR (PHMSA)\nSent:\nMonday, December 10, 2018 10:00 AM\nTo:\nHazmat Interps\nSubject: FW: PHMSA interpretation request\nAttachments: PHMSA final rule background documents.pdf; Guidance Document Final Rule.pdf\nHello Alice and lkeya,\nPlease see the email below and the attachments for a letter of interpretation request.\nThanks,\nLynsie Patschke\nHazardous Materials Information Center (HMIC)\nFrom: Cindy Van Duyne [mailto:cvd@noramllc.com]\nSent: Thursday, December 06, 2018 12:33 PM\nTo: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>\nCc: Nicole Hameister <nhameister@canalterminal.com>\nSubject: FW: PHMSA interpretation request\nDear Sir or Madam:\nThe purpose of this email is to request a formal PHMSA interpretation regarding reliance on the TSI \"Molten Sulphur Rail\nTank Car Guidance\" for release of railcars with residual molten sulfur on the exterior.\nCanal Terminal Company (erC) conducts transloading of molten sulfur from trucks to railcars. ere sets up the cars to\nreceive the product. An outside carrier conducts the transfer. ere secures the railcars for shipment. ere is the shipper\non the shipping papers.\nOur concern is that ere would be the party cited in an FRA violation for excessive product on the exterior of the\nrailcar. The carrier is inferring that the inclusion of the guidance in the final rule ensures that ere will not be cited. We\n' would like to know PHMSA's view on the topic. Please see the attached background documents.\nPlease let me know if you need further information. I can be reached at 504-460-1171.\nBest regards,\n1\n\n<<<PAGE 6>>>\n\nCindy Van Duyne\nCompliance Manager\nCanal Terminal Company\n23213 S. Youngs Road\nChannahon, IL 60410\n2","truncated":false,"body_characters":20396}