{"operation":"document","citation":"CHI-09-001","title":"Wal-Mart Stores, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2009-11-04","effective_on":null,"summary":"CHI-09-001 response to Wal-Mart Stores, Inc. concerning 171.9, 173.159.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-09-001.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-09-001.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-09-001","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-09-001.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPHC-10, Room E26-331\n1200 New Jersey Avenue, S.E.,\nPipeline and Hazardous\nMaterials Safety Administration\nOffice of\nWashington, D.C. 20590-0001\nChief Counsel\nPhone: (202)366-4400\nFax: (202) 366-7041\nmail: joe.solomey@dot.gov\nHazardous Materials Safety\nLaw Division\nLETTER OF INTERPRETATION\nNovember 4, 2009\nMr. Thomas E. Evans\nWal-Mart Stores, Inc.\n601 North Walton Boulevard, MS-L20\nBentonville, Arkansas 72716-0710\nDear Mr. Evans:\nThis letter is in response to the meeting that occurred on September 22, 2009 between\nMessrs. Sharkey, Dragash, yourself, and PHMSA. You asked PEMSA to clarify whether\nexception four in 49 C.F.R. §173.159(e) applies to only one shipper.\nThe answer to your question is yes, 49 C.F.R. §173.159(e)(4) applies to only one shipper.\nmaterial shipped by any person other than the shipper of the batteries. The Rules of\nYou suggest there is ambiguity in reading exception four: the transport vehicle may not carry\nConstruction, which are Pound in 9 Ceo Created naring the sular\nconstruction, which are tound in 49 C.F.R. 81/1.9\nsingular shipper, or it can be multiple shippers. This creates ambiguity.\nIf a regulation is ambiguous, we would consult the preamble of the final rule as evidence\nof context or intent of the agency promulgating the regulations. The preamble provides\nguidance. In this situation, the preamble to the final rule stated that:\n\"interested persons were afforded an opportunity to participate in this rule\nmaking. Of the comments received no objection was taken to the\nprovisions of the basic proposal except that one commenter believes the\nexemption extension is discriminatory because rail transportation was not\nincluded. The Board will consider this comment as a petition for further\nrule making since such a proposal was not made by the Board in the\nnotice.\" HM-21, 34 Fed.Reg. 13871 (1969), 8/29/1969\n\n<<<PAGE 2>>>\n\n2\nThe preamble was silent with respect to this exception. There was no mention of any objections,\ntherefore no changes were proposed from the Notice of Proposed Rulemaking (NPRM.) In order\nto fully understand the intent of the exception, the preamble to the NPRM must be examined to\ndetermine the regulatory intent. It can be found under docket number HM-21, 34 Fed.Reg. 6444\n(1969), 4/12/1969, which states:\nthe Board believes that the exception should cover only those shipments where a\nmotor vehicle is carrying only one shipper's goods. This limitation will thus\nachieve substantially the same type of control that is available in a private carriage\nshipment while not so limiting the types of carriage that may be used.\nThe plain language of the preamble to the NPRM clearly states only one shipper's goods are\nallowed on a transport vehicle under the exception. Interested parties had the opportunity to\ncomment on the NPRM. In the final rule, no one proposed a change to the NPRM, therefore the\noriginal intent of the NPRM should stand\nTo be consistent with the intent of the NPRM, only one shipper's goods are allowed on a\ntransport vehicle under the exceptions listed in 49 C.F.R. §173.159(e).\nI hope this information is helpful.\nSincerely,\nJoesh Solomey\nJoseph Solomey,\nAssistant Chief Counsel for\nHazardous Materials Safety\n2","truncated":false,"body_characters":3254}