# Canal Terminology Company — Hazardous Materials Safety Interpretation

- **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:** Not available
- **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>>>

U.S. Department
of Transportation
Pipeline and Hazardous
Materials Safety
Administration
1200 ,New Jersey Avenue, SE
Washington, DC 20590
JUN 2 4 2019
Cindy Van Duyne
Compliance Manager
Canal Terminology Company
23213 S. Youngs Road
Channahon,IL 60410
Reference No. 18:..0155
Dear Ms. Van Duyne:
This letter is in response to your December 6, 2018, email and subsequent phone conversation
requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180)
applicable to residue of molten sulfur on tank cars during transloading. You describe a scenario
in which your company, Canal Terminology Company (CTC), performs the following activities
during transloading operations:
• Sets up tank cars to receive molten sulfur;
• Secures the tank cars for shipment after being filled with molten sulfur;
• Serves as the shipper of record on shipping papers.
You state that an outside carrier conducts the physical transfer of the molten sulfur from the
cargo tanks to the tank cars. You ask whether CTC would be cited for a violation if there is
excessive amount of molten sulfur on the exterior of the tank car. As clarified in our phone
conversation, you indicate that the residue of molten sulfur is from either: (1) a previous
shipment (i.e., residue is found on an empty tank car prior to transloading); or (2) after the tank
car is filled by the outside carrier.
In accordance with § 171.2( e ), no person may offer or accept a hazardous material for
transportation in commerce unless the hazardous material shipment properly complies with the
HMR. Section 173.24(b)(4) states that there will be no hazardous material residue adhering to
the outside of the package during transport: and§ 174.57 specifies that all hazardous materials
leaked from a rail car must be carefully removed. Therefore, no package should be offered or
accepted for transportation unless it conforms to the HMR, which includes ensuring there is no
residue outside of the tank car. Regardless of the state of the tank cars from a previous shipment
or another entity performing the transloading, since your company is acting as a shipper and
carrier (by accepting a transload), you have the responsibility for ensuring the hazardous material
is in a condition for shipment as required or authorized by the HMR.

<<<PAGE 2>>>

However, as noted in your request, on March 11, 2013, PHMSA published a final rule titled
"Hazardous Materials; Miscellaneous Amendments (RRR)" [HM-218G; 78 FR 15303] that
addressed a petition for rulemaking (P-1581), which: (1) added The Sulphur Institute's (TSI)
"Molten Sulphur Rail Tank Car Guidance" document to Table 1 of§ 171. 7 as a material not
incorporated by reference; and (2) created a new special provision Rl (see § 172.102) to
reference offerors of tank cars containing sulfur, molten, or residue of sulfur, molten to TSI's
document to identify tank cars that may pose a risk in transportation due to the accumulation of
formed, solid sulfur on the outside of the tank. In the HM-218G final rule, PHMSA specifies
that although§§ 173.24(b)(4) and 174.57 indicate that no residue is permitted on the outside of
the tank car, "minimal levels of sulfur residue on the outside of a rail tank car pose minimal
transportation risk due to physical state, chemical properties, and amount" and that there are
difficulties in removing dried sulfur residue from the tank car while in transportation.
Regarding enforcementactions, in general, whenever a hazardous material has not been offered
or transported in compliance with the HMR, the Department of Transportation will attempt to
identify and bring an enforcement proceeding against the person who offered the noncomplying
shipment into transportation. See the enclosed formal interpretation of regulations regarding
carrier responsibility when accepting hazmat for transportation in commerce (June 4, 1998;
63 FR 30411).
I hope this information is helpful. Please contact us ifwe can be of further assistance.

<<<PAGE 3>>>

Federal Register/Vol. 63, No. 107 /Thursday, June 4, 1998/Rules and Regulations 30411
the criteria for a significant regulatory 12. Neurological (11.00 and 111.00): July 1,
action under Executive Order 12866. 1999.
Thus, it was not subject to 0MB review. * * * * *
Recmlatorv Flexibility Act 15. Immune System (14.00 and 114.00):
r,-- ✓ July 1, 1999.
We certify that this regulation will not * * * * *
have a significant economic impact on [FR Doc. 98-14599 Filed 6-3-98; 8:45 am]
a substantial number of small entities.
BILLING CODE 4190-29-P
Therefore, a regulatory flexibility
analysis as provided in the Regulatory
Flexibility Act, as amended, is not
DEPARTMENT OF TRANSPORTATION
required.
Paperwork Reduction Act
Research and Special Programs
Administration
This regulation imposes no reporting/
recordkeeping requirements
necessitating clearance by 0MB.
(Catalog of Federal Domestic Assistance
Program Nos. 96.001, Social Security-
49 CFR Parts 107,171,172, 173, 174,
175,176,177
[Notice No. 9~]
Disability Insurance; 96.002, Social Security-
Retirement Insurance; 96.004, Social
Security-Survivors Insurance; 96.006,
Supplemental Security Income)
List of Subjects in 20 CFR Part 404
Administrative practice and
procedure, Blind, Disability benefits,
Hazardous Materials: Formal
Interpretation of Regulations
AGENCY: Research and Special Programs
Administration (RSPA), DOT.
ACTION: Formal interpretation of
regulations.
Old-Age, Survivors and Disability
Insurance, Reporting and recordkeeping
requirements, Social security.
Dated: May 27, 1998.
Kenneth S. Apfel,
Commissioner of Social Security.
For the reasons set forth in the
preamble, part 404, subpart P, chapter
III of title 20 of the Code of Federal
Regulations is amended as set forth
below.
PART 404-FEDERAL OLD-AGE,
SURVIVORS AND DISABILITY
INSURANCE (1950-)
Subpart P-{Amended]
1. The authority citation for subpart P
of part 404 continues to read as follows:
Authority: Secs. 202, 205(a), (b), and (d)-
(h), 216(i), 221(a) and (i), 222(c), 223, 225,
and 702(a)(5) of the Social Security Act (42
U.S.C. 402, 405(a), (b), and (d)-(h), 416(1),
421(a) and (i), 422(c), 423, 425, and
902(a)(5)); sec. 211(b), Pub. L. 104-193, 110
Stat. 2105, 2189.
2. Appendix 1 to subpart P of part 404
is amended by revising items 1, 3, 11 ,
12, and 15 of the introductory text
before Part A to read as follows:
Appendix 1 to Subpart P-Listlng of
Impairments
* * * * *
1. Growth Impairment (100.00): July 1,
1999.
* * * * *
3. Special Senses and Speech (2.00 and
102.00): July 1, 1999.
* * * * *
11. Multiple Body Systems (110.00): July 1,
1999.
SUMMARY: This document publishes a
formal interpretation of the Hazardous
Materials Regulations (HMR) concerning
the responsibilities of a carrier when
accepting hazardous materials for
transportation in commerce. This
interpretation is being published in
order to facilitate better public
understanding and awareness of the
HMR.
EFFECTIVE DATE: June 4, 1998.
FOR FURTHER INFORMATION CONTACT:
Frazer C. Hilder, Office of the Chief
Counsel, Research and Special Programs
Administration, U.S. Department of
Transportation, 400 Seventh Street, SW,
Washington, DC 20590-00001 ;
telephone 202-366- 4400.
SUPPLEMENTARY INFORMATION: As part of
its implementation of the Federal
hazardous material transportation law,
49 U.S.C. 5101 et seq., RSPA issues the
Hazardous Materials Regulations
(HMR), 49 CFR parts 171-180. From
time to time, RSPA's Chief Counsel
issues formal interpretations of the
HMR. These interpretations generally
involve multimodal issues and are
coordinated with the other DOT
agencies which, together with RSP A,
enforce the HMR: Federal Aviation
Administration, Federal Highway
Administration, Federal Railroad
Administration, and United States Coast
Guard. This document publishes a Chief
Counsel's interpretation concerning the
responsibilities of a carrier when
accepting hazardous materials for
transportation in commerce. This
interpretation addresses issues raised in
a letter by Mr. E.A. Altemos, ofHMT
Associates, and is consistent with an
August 19, 1997 written response to Mr.
Altemos by RSPA's Associate
Administrator for Hazardous Materials
Safety.
In addition to these infrequent formal
interpretations by RSPA's Chief
Counsel, RSPA's Office of Hazardous
Materials Standards provides
information and informal clarifications
of the HMR on an ongoing basis,
through (1) a telephonic information
center (1-800-467-4922) to answer oral
questions and (2) informal written
interpretations or clarifications in
response to written inquiries. RSPA's
formal interpretations and informal
letter clarifications (and additional
information concerning the HMR) are
also available through the Hazmat
Safety Homepage at "http://
hazmat.dot.gov." In addition, some of
RSPA's interpretations and
clarifications may be reproduced or
summarized in selected trade
publications.
Further information concerning the
availability of informal guidance and
interpretations of the HMR is set forth
in 49 CFR 107.14. RSPA believes that
publication of its interpretations should
promote a better understanding of the
HMR and improve compliance with the
HMR.
Issued in Washington, DC, on May 28,
1998.
Judith S. Kaleta,
Chief Counsel.
[Int. No. 98-1]
Background
Mr. E.A. Altemos, HMT Associates,
requested clarification of requirements in the
HMR concerning an air carrier's acceptance
of packages.containing hazardous materials.
This inquiry concerned only the carrier's
responsibilities relating to hazardous
materials offered by another person, and not
a carrier's transportation of i~ own materials
or products. (For information on an air
carrier's transportation of its own company
materials, or "COMAT," see "COMAT
FACTS" in RSPA's January 1998 Safety
Alert, available on the Hazmat Safety
Homepage.)
Although Mr. Altemos's question was
posed in the context of air transportation, the
HMR requirements discussed in RSPA's
interpretation apply to carriers by all modes
of transportation.
Interpretation
Basic requirements in the HMR set forth in
49 CFR 171.2(a) and (b), and applicable to
carriers in all modes of transportation, are
that no person may
accept a hazardous material for
transportation in commerce unless * * * the
hazardous material is properly classed,
described, packaged, marked, labeled, and in
condition for shipment as required or

<<<PAGE 4>>>

30412 Federal Register/Vol. 63, No. 107 /Thursday, June 4, 1998/Rules and Regulations
authorized by applicable requirements of [the
HMR], or an exemption, approval, or
registration issued under [the HMR) * * *
[or]
transport a hazardous material in commerce
unless * * * the hazardous material is
handled and transported in accordance with
applicable requirements of [the HMRJ, or an
exemption, approval, or registration issued
under [the HMR] * * *
A carrier's acceptance and transportation
of hazardous materials can involve several
different situations, including the following
two ends of the spectrum:
1. the shipment is declared by the offeror,
in one manner or another, to contain
hazardous materials and complies (in whole
or in part) with requirements in the HMR; or
2; whether intentionally or
unintentionally, the shipment is not declared
by the offeror to contain hazardous materials,
and no attempt has been made to comply
with the HMR (the "undeclared" or "hidden"
shipment).
The Secretary of Transportation has
delegated to agencies within the Department
(Federal Aviation Administration, Federal
Highway Administration, Federal Railroad
Administration, United States Coast Guard,
and Research and Special Programs
Administration), the authority in 49 U.S.C.
5123 to assess a civil penalty against any
person who "knowingly violates" any
requirement in the HMR, including the
provisions in§ 171.2 (a) and (b) quoted
above. Section 5123(a) provides that.a person
"acts knowingly" when
(A) the person has actual knowledge of the
facts giving rise to the violation; or
(B) a reasonable person acting in the
circumstances and exercising reasonable care
would have that knowledge.
Accordingly, a <;arrier knowingly violates
the HMR when the carrier accepts or
transports a hazardous material with actual
or constructive knowledge that a package
contains a hazardous material which has not
been packaged, marked, labeled, and
described on a shipping paper as required by
the HMR. This means that a carrier may not
ignore readily apparent facts that indicate
that either (1) a shipment declared to contain
a hazardous material is not properly
packaged, marked, labeled, placarded, or
described on a shipping paper, or (2) a
shipment actually contains a hazardous
material governed by the HMR despite the
fact that it is not marked, labeled, placarded,
or described on a shipping paper as
containing a hazardous material.
The Department's October 4, 1977
interpretation concerning 49 CFR 175.30
(reproduced below) relates to the first
situation in the above paragraph, i.e., when
an air carrier receives a shipment
accompanied by a shipping paper containing
a shipper's certlflcation that hazardous
materials within the shipment have been
classed, packaged, marked, labeled and
accurately described as requµ-ed . See 49 CFR
172.204. Whenever, in the course of
examining the shipping paper and
performing the required visual inspection of
the package, an air carrier has reason to know
of discrepancies, the carrier may not simply
rely on the shipper's certlflcation.
In the case of an undeclared or hidden
shipment, all relevant facts must be
considered to determine whether or not a
reasonable person acting in the
circumstances and exercising reasonable care
would realize the presence of hazardous
materials. In an enforcement proceeding, this
is always a question of fact, to be determined
by the fact-finder. Because innumerable fact
patterns may exist, it is not practicable to set
forth a list of specific criteria to govern
whether or not the carrier has sufficient
constructive knowledge of the presence of
hazardous materials within an undeclared or
hidden shipment to find a knowing violation
oftheHMR.
Information concerning the contents of
suspicious packages must be pursued to
determine whether hazardous materials have
been improperly offered. A carrier's
employees who accept packages for
transportation must be trained to recognize a
"suspicious package," as part of their
function-specific training as specified in 49
CFR 172. 704(a)(2), because the legal standard
remains the knowledge that a reasonable
person acting in the circumstances and
exercising reasonable care would have.
Because this standard applies to all modes of
transportation, a single training program and
a uniform screening process can be
developed for all of a company's employees
involved in surface or air transportation.
At the same time, an offeror who fails to
properly declare (and prepare) a shipment of
hazardous materials bears the primary
responsibility for a hidden shipment.
Whenever hazardous materials have not been
shipped in compliance with the HMR, DOT
generally will attempt to identify and bring
an enforcement proceeding against the
person who first caused the transportation of
a noncomplying shipment. The procedures
applicable to DOT civil penalty enforcement
cases procedures are set forth in 14 CFR
13.16 (FAA); 33 CFR part 1, subpart 1.07
(USCG); 49 CFR part 109, subpart B (FRA);
49 CFR part 107, subpart D (RSPA); and 49
.CFR part 386 (FHWA).
To the extent that any carrier, regai:dless of
the mode of transportation, is truly
"innocent" in accepting an undeclared or
hidden shipment of hazardous materials, it
lacks the knowledge required for assessment
of a civil penalty. However, when a carrier
acts "knowingly," as defined in 49 U.S.C.
5123(a), it must be considered subject to civil
penalties. RSPA rejects any suggestion that a
carrier would be deemed to have
"knowingly" accepted a hazardous material
for transportation, and be subject to civil
penalties under 49 U.S.C. 5123, only when
the material is described as a hazardous
material on a shipping paper or other
commercial documentation, or the package is
marked or labeled in a manner as prescribed
by the HMR. That approach would
improperly limit a carrier's responsibility to
situations involving a "deciared" shipment.
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
October 4, 1977.
Subj: Air Carrier's Responsibility for
Inspection of Hazardous Materials
Packages.
From: Assistant General Counsel for
Materials Transportation Law.
To: Director, Transportation Safety Institute,
TES-15
This is in response to your request of
August 25, 1977, for our opinion as to
whether an air carrier has a specific
regulatory obligation to inspect hazardous
materials packages prior to acceptance for air
transportation to insure the shipper's
compliance with specific regulatory
requirements of parts 1 73 and 178. With the
question, you have supplied your analysis
and conclusion that except for the physical
integrity inspection provided for in
§ 175.30(b) there is no duty on the air carrier
to inspect hazardous materials packages prior
to acceptance for transportation in order to
determine compliance with the requirements
of parts 173 and 178. Thus, it is your opinion
that the air carrier may rely on the shipper's
certification accompanying the shipment.
Section 175.30 prescribes the requirements
that must be met before an air carrier accepts
a shipment of hazardous materials for
transportation. In achieving compliance with
these requirements, the air carrier must,
under paragraph (a), examine the shipment
against the information supplied on the
shipping paper, and must, under paragraph
(b), make a visual inspection for leaks and
damaged packaging. Consequently, I agree
with your analysis and conclusion that the
regulations permit the air carrier to rely on
the information supplied on the shipping
paper, unless, in complying with paragraphs
(a) and (b), he has reason to know that there
are discrepancies.
[FR Doc. 98-14561 Filed 6- 3- 98; 8:45 am)
BILLING CODE 491~
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 961107312-7021-02; I.D.
052098B]
Fisheries of the Exclusive Economic
Zone Off Alaska; Bycatch Rate
Standards for the Second Half of 1998
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Pacific halibut and red king crab
bycatch rate standards; request for
comments.
SUMMARY: NMFS announces Pacific
halibut and red king crab bycatch rate
standards for the second half of 1998.
Publication of these bycatch rate
standards is required under regulations

<<<PAGE 5>>>

January, lkeya CTR (PHMSA)
From: INFOCNTR (PHMSA)
Sent:
Monday, December 10, 2018 10:00 AM
To:
Hazmat Interps
Subject: FW: PHMSA interpretation request
Attachments: PHMSA final rule background documents.pdf; Guidance Document Final Rule.pdf
Hello Alice and lkeya,
Please see the email below and the attachments for a letter of interpretation request.
Thanks,
Lynsie Patschke
Hazardous Materials Information Center (HMIC)
From: Cindy Van Duyne [mailto:cvd@noramllc.com]
Sent: Thursday, December 06, 2018 12:33 PM
To: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>
Cc: Nicole Hameister <nhameister@canalterminal.com>
Subject: FW: PHMSA interpretation request
Dear Sir or Madam:
The purpose of this email is to request a formal PHMSA interpretation regarding reliance on the TSI "Molten Sulphur Rail
Tank Car Guidance" for release of railcars with residual molten sulfur on the exterior.
Canal Terminal Company (erC) conducts transloading of molten sulfur from trucks to railcars. ere sets up the cars to
receive the product. An outside carrier conducts the transfer. ere secures the railcars for shipment. ere is the shipper
on the shipping papers.
Our concern is that ere would be the party cited in an FRA violation for excessive product on the exterior of the
railcar. The carrier is inferring that the inclusion of the guidance in the final rule ensures that ere will not be cited. We
' would like to know PHMSA's view on the topic. Please see the attached background documents.
Please let me know if you need further information. I can be reached at 504-460-1171.
Best regards,
1

<<<PAGE 6>>>

Cindy Van Duyne
Compliance Manager
Canal Terminal Company
23213 S. Youngs Road
Channahon, IL 60410
2
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