{"operation":"document","citation":"CHI-04-002","title":"Agricultural Retailers Association — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2004-03-08","effective_on":null,"summary":"CHI-04-002 response to Agricultural Retailers Association concerning 172.802.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-04-002.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-04-002.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-04-002","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-04-002.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nResearch and\nSpecial Programs Administratron\nOffice of the\nChief Counsel\n400 Seventh Street, S. W .\nRoom 8407\nWashlngm, D.C. 20590\nPhone: (202) 366-4400\nFax: (202) 366-7041\nMAR 8 2004\nMr. James D Thrift\nVice President, Regulatory Affairs & Corporate Relations\nAgricultural Retailers Association\n1156 15th Street, NW\nSuite 302\nWashington, DC 20005\nDear Mr.\nThrift:\nThank you for your February 20,2004 email posing additional questions concerning potential\nliability issues for agricultural retailers that provide hazardous materials to farmer customers who\nare required to produce security plans under the Hazardous Materials Regulations (HMR; 49\nC.F.R. Parts 171-180). Your questions are a follow up to my February 19, 2004 letter to Mr.\nRichard Gupton, of your association. I have summarized your questions and will respond to\nthem in the order you present them in your email.\n1. Under the current HM-232 security plan requirements, what liability could a retailer face if an\nincident involving hazardous materials under the sole control of a purchaser occurs en route and\nthe purchaser lacks a security plan or fails to adhere to an existing security plan required by\nfederal regulation?\nAs I explained in my previous letter, the security plan requirements in Subpart I of Part 172 of\nthe HMR apply to persons who offer for transportation or transport certain hazardous materials in\ncommerce. An agricultural retailer who sells agricultural products such as fertilizers or\npesticides to a farmer is an offeror for the purposes of the HMR and, thus, must develop and\nimplement a security plan if it sells hazardous materials in the types and amounts listed in\n§ 1 72.80O(b). In accordance with § 172.802, the security plan must address personnel security,\nunauthorized 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, as I mentioned in my previous letter, an agricultural retailer may want to\nsuggest to his customers that they take certain precautions while transporting the hazardous\nmaterial from the retailer's facility to the customer's facility.\n\n<<<PAGE 2>>>\n\nAn agricultural retailer's potential liability stemming from a customer's en route incident\ninvolving hazardous material, where the customer lacked a security plan or failed to adhere to a\nsecurity plan, will depend on various circumstances. If the retailer's security plan requires the\nretailer to sell covered hazardous materials only to customers who have developed and\nimplemented 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 HMR. However, the retailer is not responsible for ensuring that\nits customers adhere to their own security plans. Thus, if the incident occurs because a customer\ndid not adhere to it own security plan, Research and Special Programs Administration (RSP A)\nwould not hold'the retailer liable for the customer's failure to adhere to its plan.\n2. Does a retailer's en rout security plan required by HM-232 only relate to hazardous materials\nunder the control of that retailer?\nFor this question, I understand your use of the phrase \"under the control of' the retailer to mean\n\"offered by\" the retailer. As previously discussed, the security plan requirements apply to a\nperson that sells hazardous materials in the types and amounts listed in § 1 72.800(b). Thus, in\naccordance with § 172.802, the retailer's security plan must address personnel security,\nunauthorized access, and en route security for the covered materials that the retailer offers.\n3. Under HM-232 or any other DOT regulation, does the retailer have any obligation to address\nthe en route security of materials sold and under the sole control of the purchaser?\nAs previously explained, if the retailer offers hazardous materials in the amount covered by\n§ 172.800(b), the retailer's security plan must address en route security for that material. The\nretailer is not specifically responsible for addressing the customer's en route security unless the\nretailer's security plan requires it to do so.\n4. What are the specific liability consequences that could result from a retailer that sells\nhazardous materials to a farmer customer who fails to develop and adhere to a security plan and\nan incident occurs while a farmer customer is en route?\nAgain, the response depends on specific facts. If the retailer's security plan requires the retailer\nto sell covered hazardous materials only to customers who have developed and implemented\nsecurity plans, then offering such hazardous materials to a customer without a security plan\nwould likely be considered a failure to adhere to the retailer's security plan and, consequently, a\nviolation of the HMR.\n5. What types of measures\nwould demonstrate\na good-faith effort by retailers\nto do all they can to\nensure the security of their\nwhile ents'\nIn\nthe hands of their customers?\nAdhering to the security plan requirements demonstrates a good-faith effort on the retailer's part\nto ensure the security of its shipments. In addition, the retailer can implement certain procedures,\n-2-\n\n<<<PAGE 3>>>\n\nsuch as providing a handout to its customers that list security precautions the customer should\nconsider. As I explained in my previous letter, such precautions could include: (1) to the extent\npractical, minimize transit time by going directly from the retailer to the destination; (2) to the\nextent practical, prevent unauthorized persons from gaining access to the shipment by monitoring\nthe shipment during stops, locking the shipment inside the transport vehicle, securing the\nshipment to the transport vehicle, and/or securing closures on the container or package; and (3)\nreport suspicious incidents or events to local or federal law enforcement officials.\nFrom an enforcement perspective, RSP A will be looking to detennine whether a retailer has a\nsecurity plan that is based on a security risk assessment and addresses the three components\nlisted in the HMR. Generally speaking, RSP A will not second guess decisions that a retailer\nmakes on how to address security issues for its specific facility and operations.\nI hope this infonnation is helpful. If you have additional questions, please contact me or Donna\nO'Berry of my staff on (202) 366-4400.\nSincerely\n~;~~'-;;Z--- -\nAssistant Chief Counsel\nHazardous Materials Safety and Emergency\nTransportation Law Division\n-3-","truncated":false,"body_characters":6800}