{"operation":"document","citation":"CHI-04-001","title":"Agricultural Retailers Association — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2004-02-19","effective_on":null,"summary":"CHI-04-001 response to Agricultural Retailers Association concerning 172.802.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-04-001.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-04-001.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-04-001","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-04-001.pdf","body":"<<<PAGE 1>>>\n\n~.\n,\nU.S. Department\nof Transportation\nResearch and\nSpecial Programs Administration\nOffice of the\nChief Counsel\n400 Seventh Sb\"eet, S. W.\nRoom 8407\nWashington, D.C. 20590\nPhone: (202) 366-4400\nFax: (202) 366-7041\nFEB 1 9 ZX>4\nMr. Richard D. Gupton\nDirector of Legislative Policy & Counsel\nAgricultural Retailers Association\n1156 15th Street, NW\nSuite 302\nWashington, DC 20005\nDear Mr. Gupton:\nThank you for your December 9,2003 letter to Mr. Robert McGuire, Associate Administrator for\nHazardous Materials Safety, concerning potential liability issues for agricultural retailers that\nprovide hazardous materials to farmer customers who are required to produce security plans\nunder the Hazardous Materials Regulations (HMR; 49 C.F .R. Parts 171-180). Since your\nquestions pertain to legal issues, I am responding to your letter instead of Mr. McGuire. I have\nsummarized your questions and will respond to them in the order you present. them in your letter.\n1. Do the new Department of Transportation (DOT) hazardous materials security regulations\npreempt all related state transportation and tort laws and regulations?\nThe criterial for preemption of non-Federal requirements concerning the transportation of\nhazardous materials are set forth in 49 U.S.C. § 5125. In summary, a non-Federal requirement is\npreempted, unless it is otherwise authorized by F ederallaw, when:\n(1) it is not possible to comply with both the non-Federal requirement and the Federal\nhazardous materials transportation law requirements or requirements in the HMR;\n(2) the non-Federal requirement is an obstacle to accomplishing and carrying out Federal\nhazardous materials transportation law or the HMR;\n(3) the non-Federal requirement pertains to any of five \"covered subjects\" and is not\n\"substantively the same as'' requirements in the Federal hazardous materials\ntransportation law or the HMR;\n(4) a non-Federal routing requirement does not comply with regulations of the Federal\nMotor Carrier Safety Administration; or\n\n<<<PAGE 2>>>\n\n(5) a fee related to the transportation of hazardous material is not fair or is used for a\npurpose that is not related to transporting hazardous material.\nIf the non-Federal requirement meets any of the above criteria, then Federal preemption law\nwould conceivably apply. However, there is no automatic finding of preemption solely because\none of the above criterion may apply. Instead, the Research and Special Programs\nAdministration (RSP A) must evaluate a non-Federal requirement to determine whether, as\napplied and enforced, the regulation is covered by a particular preemption standard. We will\nconsider questions as to whether specific non-federal security regulations are pre-empted on a\ncase-by-case basis, applying the principles outlined above.\n2. What measures are required and/or recommended by DOT for a retailer to address en route\nsecurity?\nThe security plan requirements in Subpart I of Part 172 of the HMR apply to persons who offer\nfor transportation or transport certain hazardous materials in commerce. An agricultural retailer\nwho sells agricultural products such as fertilizers or pesticides to a farmer is an offeror for the\npurposes of the HMR and, thus, must develop and implement a security plan if it sells hazardous\nmaterials in the types and amounts listed in § 172.800(b). In accordance with § 172.802, the\nsecurity plan must address personnel security, unauthorized access, and en route security.\nThe regulations do not require an agricultural retailer to verify that its customers have a security\nplan, nor do the regulations require the retailer to collect or review customer security plans.\nHowever, the retailer's security plan should indicate the measures it has taken to address en route\nsecurity. For example, an agricultural retailer may want to suggest to his customers that they take\ncertain precautions while transporting the hazardous material from the retailer's facility to the\ncustomer's facility. Such precautions could include: (1) to the extent practical, minimize transit\ntime by going directly from the retailer to the destination; (2) to the extent practical, prevent\nunauthorized persons from gaining access to the shipment by monitoring the shipment during\nstops, locking the shipment inside the transport vehicle, securing the shipment to the transport\nvehicle, and/or securing closures on the container or package; and (3) report suspicious incidents\nor events to local or federal law enforcement officials.\n3. Is a retailer exempt from liability if a fanner customer covered under new hazardous materials\nsecurity regulations fails to implement a security plan, e.g. fails to lock the shipment during stops\nor allows unauthorized persons access to the shipment, and an incident occurs as a result while\nthat customer is en route on a public street or highway with the hazardous material?\nFor this question, I understand your use of the phrase \"implement a security plan\" to mean\n\"adhere to a security plan.\" As discussed above, the agricultural retailer is required to have a\nsecurity plan that addresses en route security. The retailer is not responsible for ensuring that its\ncustomers adhere to their own security plans. Thus, in the situation you describe, RSP A would\nnot hold the retailer liable for the customer's failure to adhere to its plan.\n-2-\n\n<<<PAGE 3>>>\n\n4. What, if any, consequences or liability issues could result from a retailer that provides\nhazardous materials to a farmer customer covered under the new DOT hazardous materials\nsecurity regulations if the retailer fails to implement a security plan and an incident occurs as a\nresult while the customer is en route?\nFor this question, I understand your use of the phrase \"implement a security plan\" to mean\n\"develop and adhere to a security plan.\" As explained above, the retailer's security plan must\naddress personnel security, unauthorized access, and en route security. While the retailer is not\nrequired to verify that its customers have a security plan, its own security plan must address en\nroute security for the materials covered by the plan. For example, if the retailer's security plan\nrequires the retailer to sell covered hazardous materials only to customers who have developed\nand implemented security plans, then offering such hazardous materials to a customer without a\nsecurity plan would likely be considered a failure to adhere to the retailer's security plan and,\nconsequently, a violation of the I:IMR.\n5. Does DOT accept all liability when a retailer does not verify whether a fanIler customer\ncovered by the hazardous materials security regulations has implemented a security plan and\nother requirements and an incident occurs while a farmer customer that has no security plan is in\nroute on a public street or highway with hazardous materials that fall under the new regulations?\nNo, DOT does not accept any liability for the failure of an offeror or transporter to comply with\nthe security plan requirements. Furthermore, a retailer is not shielded from liability merely\nbecause it has developed and implemented a security plan. However, by adhering to the security\nplan requirements, the retailer will demonstrate a good-faith effort to do all it can to ensure the\nsecurity of its shipments.\nI hope this information is helpful. If you have additional questions, please contact me or Donna\na'Berry of my staff on (202) 366-4400.\nSincerely\n~~~11~_- Assistant Chief Counsel\nHazardous Materials Safety and Emergency\nTransportation Law Division\n-3-","truncated":false,"body_characters":7530}