{"operation":"document","citation":"CHI-10-002","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":"2010-03-12","effective_on":null,"summary":"CHI-10-002 response to Wal-Mart Stores, Inc. concerning 177.802.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-002.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-002.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-002","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-10-002.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\n1200 New Jersey Avenue, S.E.,\nPipeline and Hazardous\nPHC-10, Room E26-331\nMaterials Safety Administration\nOffice of\nWashington, D.C. 20590-0001\nChief Counsel\nFax: (202) 366-7041\nPhone: (202)366-4400\nEmail: joe.solomey@dot.gov\nHazardous Materials Safety\nLaw Division\nLETTER OF INTERPRETATION\nMarch 12, 2010\nMr. Mickey R. Dragash\nWal-Mart Stores, Inc.. Legal Department\n601 North Walton Boulevard, MS-L20\nBentonville, Arkansas 72716-0710\nDear Mr. Dragash:\nThis letter is in response to the meeting that occurred on September 22, 2009 in which Wal-\nMart asked for clarification of a previous Letter of Interpretation (08-0133) that was issued by the\nPipeline and Hazardous Materials Safety Administration's (PHMSA) Office of Hazardous\nMaterials Standards. Attendees at that meeting included Messrs. Sharkey, Evans, you, and\nrequirements that apply to loading hazardous materials on the rear of a trailer for purposes of\nPHMSA's legal and program staff. Previously, Wal-Mart Legal asked PHMSA to examine the\ninspection, and specifically asked my office to clarify the phrase \"must be made available for\nexamination and inspection, \" which is found in 49 C.F.R. § 177.802 \"Roadside inspection.\" You\nunreasonable requirement.\nalso asked if requiring the hazardous materials to be placed on the rear of the trailer is an\nThe phrase \"must be made available for examination and inspection\" does not require the\ncarrier to load the hazardous material on the rear of the trailer. Requiring all the hazardous\nmaterials to be placed on the rear of the trailer would be an unreasonable inspection requirement.\nThe following summarizes your scenario:\nWal-Mart owned and operated trailers are loaded at distribution centers and\ncompany employed drivers deliver goods to individual stores. These trailers regularly carry\nhazardous materials, which may be loaded anywhere on the trailer and mixed with general\n\n<<<PAGE 2>>>\n\nmerchandise. On several occasions, state enforcement officers have stopped your tractor trailers\nand demanded that the driver allow the inspection of the trailers for hazardous materials.\npursuant to 49 C.F.R. §177.802. The state officials have taken the position that the hazardous\nmaterials shipments must be loaded on the rear of the trailer at all times. When the hazardous\nmaterials were not loaded at the rear of the trailer, the state officials directed the driver to the\nnearest rest stop, or some other location, to unload the trailer for inspection of the hazardous\nmaterials in question. Several of the tractor trailers were placed out of service as a result of the\ninspections and Wal-Mart drivers were issued citations or given warnings.\nIn coming to our determination, we consulted the preambles to the final rule! and the\nNotice of Proposed Rulemaking? (NPRM). The language \"made available for examination or\ninspection,\" was not addressed in the preamble to the final rule. however, the rule specifically\nemphasized the inspection of carrier facilities and records but not trailers. The preamble to the\nNPRM states: \"Section 177.802 would be removed and a new section governing the inspection\nof carrier facilities and records would be added. These inspection requirements are similar to\nthose applicable to rail and air carriers.\"\nThe inspection requirement was adopted from the regulations that pertain to rail carriers\nfound in 49 C.F.R. §174.8 (11-1-85 Edition), which stated, in pertinent part:\n(b) At any point where a train is required to be inspected, each loaded placarded\nrail car and each rail car immediately adjacent thereto must be inspected. The cars\nmay continue in transit only when the inspection indicates that the cars are in a\nsafe condition for transportation. (See §§ 174.9 and 174.10.) The inspection of a\nrail car other than a tank car or a rail car containing Class A explosives must\ninclude a visual inspection for obvious defects of the running gear and any\nleakage of contents from the car and to determine whether all required placards\nare in place and conform to the information given on the train consist or other\nshipping document as required by § 174.26(b).\nIn 1976, The Materials Transportation Bureau (a predecessor to PHMSA) consolidated\nthe air, water, and surface transportation hazardous materials regulations into one volume and\namended the regulations to ensure consistency in their application to the different modes. The\nfinal rule? does not state the intent for the rule. The amendment to consolidation+ states that\nSection 174.8: \"[a]lso requires an inspection of all placarded cars at points where trains are\nto safety without placing an unreasonable burden on the rail carriers.\"\nrequired to be inspected. The Bureau believes that this requirement will contribute substantially\n' HM-183, 54, Fed. Reg. 24982, 24992 (June 12. 1989).\n- HM-183-A. 50 Fed. Reg. 37766. 37773 (September 17, 1985).\n3 HM-103/112, 41 Fed. Reg. 57018 (December 30, 1976)\n+ HM-112, 41 Fed. Reg. 15972, 15986 (April 15, 1976).\n2\n\n<<<PAGE 3>>>\n\nThe Materials Transportation Bureau intended that the inspections take place at points\nwhere trains are to be inspected without placing an unreasonable burden on the rail carrier. The\nplace to inspect a train is a rail yard, the point of origin and the point of destination. Rail carriers\nmust keep schedules, and the Bureau did not intend to disrupt the rail schedules. The NPRM for\n49 C.F.R. § 177.802 specifically stated that the origination of the motor carrier inspection\nrequirements are similar to the rail carrier requirements. The preambles to the NPRM and Final\nRule for 49 C.F.R. §177.802 both reference inspection of the carrier facilities and records.\nTherefore, there should be no unreasonable burden imposed on motor carriers. Roadside\ninspection of vehicles carrying hazardous materials is a critical enforcement tool. Generally,\nhowever, this inspection may not impose an unreasonable burden on the carrier. Requirements\nfor a truck driver of hazardous materials to unload a trailer at a rest stop, the roadside or similar\nlocation for inspection of hazardous materials packages places an unreasonable burden on the\ncarrier. Section 177.802 does not impose such requirements.\nContemporaneous with the HM-183, 183A rulemaking, the agency proposed to remove\nlong-standing requirements from 49 C.F.R. § 177.834 concerning access to ladings. In an\nNPRMS published June 3, 1986, RSPA, proposed to remove paragraph (k) which read as follows:\n\"(k) Access to mixed ladings. Flammable solids, oxidizing materials, or corrosive liquids, when\ntransported on a motor vehicle with other lading not otherwise forbidden, shall be so loaded as to\nprovide ready access thereto for shifting or removal\".\nAs stated in the preamble to the NPRM, reasons for the change were as follows:\nThe American Trucking Association, Inc. (ATA) had petitioned for removal of paragraph (k).\n\"The ATA believes that carrier operating practices should dictate how the weight of the load\nshould be distributed throughout the trailer to insure an optimum level of vehicle stability and\ntrailer to minimize the possibility of lighter packages being crushed by heavier freight.\"ó\ncompliance with weight laws. The motor carrier also should be given the flexibility to load the\nThe final rule? indicates that nineteen commentators supported the removal of paragraph\n(k), and the provision was removed. There were no other requirements for access to hazardous\nmaterials stowed on a vehicle in the HMR. If the industry had viewed the new 49 C.F.R. §\nhazmat accessible during transport, there would have been strong opposition during the notice\n177.802 added under HM-183, 183A as implementing more stringent requirements for making\nstage.\nTo be consistent with the intent of the NPRM, and PHMSA's letter of interpretation,\nPHMSA must uphold that hazardous materials are not required to be stored in the rear of a trailer\nto allow for an inspection in accordance with 49 C.F.R. §177.802 and that requiring a driver of\ndestination, places an unreasonable burden to on the driver.\nractor trailer to unload the contents of the trailer, at a place other than the truck's origin or\n5 HM-166U, 51 Fed. Reg. 19866 (June 3, 1986).\n6 Id. at 19873.\n7 HM-166U, 52 Fed. Reg. 13034, 13036 (April 20, 1987).\n\n<<<PAGE 4>>>\n\nI hope this information is helpful.\nSincerely,\nJosh Solemy\nJoseph Solomey,\nAssistant Chief Counsel for\nHazardous Materials Safety","truncated":false,"body_characters":8443}