Wal-Mart Stores, Inc. — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation PHC-10, Room E26-331 1200 New Jersey Avenue, S.E., Pipeline and Hazardous Materials Safety Administration Office of Washington, D.C. 20590-0001 Chief Counsel Phone: (202)366-4400 Fax: (202) 366-7041 mail: joe.solomey@dot.gov Hazardous Materials Safety Law Division LETTER OF INTERPRETATION November 4, 2009 Mr. Thomas E. Evans Wal-Mart Stores, Inc. 601 North Walton Boulevard, MS-L20 Bentonville, Arkansas 72716-0710 Dear Mr. Evans: This letter is in response to the meeting that occurred on September 22, 2009 between Messrs. Sharkey, Dragash, yourself, and PHMSA. You asked PEMSA to clarify whether exception four in 49 C.F.R. §173.159(e) applies to only one shipper. The answer to your question is yes, 49 C.F.R. §173.159(e)(4) applies to only one shipper. material shipped by any person other than the shipper of the batteries. The Rules of You suggest there is ambiguity in reading exception four: the transport vehicle may not carry Construction, which are Pound in 9 Ceo Created naring the sular construction, which are tound in 49 C.F.R. 81/1.9 singular shipper, or it can be multiple shippers. This creates ambiguity. If a regulation is ambiguous, we would consult the preamble of the final rule as evidence of context or intent of the agency promulgating the regulations. The preamble provides guidance. In this situation, the preamble to the final rule stated that: "interested persons were afforded an opportunity to participate in this rule making. Of the comments received no objection was taken to the provisions of the basic proposal except that one commenter believes the exemption extension is discriminatory because rail transportation was not included. The Board will consider this comment as a petition for further rule making since such a proposal was not made by the Board in the notice." HM-21, 34 Fed.Reg. 13871 (1969), 8/29/1969#

Page 22 The preamble was silent with respect to this exception. There was no mention of any objections, therefore no changes were proposed from the Notice of Proposed Rulemaking (NPRM.) In order to fully understand the intent of the exception, the preamble to the NPRM must be examined to determine the regulatory intent. It can be found under docket number HM-21, 34 Fed.Reg. 6444 (1969), 4/12/1969, which states: the Board believes that the exception should cover only those shipments where a motor vehicle is carrying only one shipper's goods. This limitation will thus achieve substantially the same type of control that is available in a private carriage shipment while not so limiting the types of carriage that may be used. The plain language of the preamble to the NPRM clearly states only one shipper's goods are allowed on a transport vehicle under the exception. Interested parties had the opportunity to comment on the NPRM. In the final rule, no one proposed a change to the NPRM, therefore the original intent of the NPRM should stand To be consistent with the intent of the NPRM, only one shipper's goods are allowed on a transport vehicle under the exceptions listed in 49 C.F.R. §173.159(e). I hope this information is helpful. Sincerely, Joesh Solomey Joseph Solomey, Assistant Chief Counsel for Hazardous Materials Safety 2#