{"operation":"document","citation":"CHI-10-004","title":"ACCU CHEM Conversion, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2010-08-23","effective_on":null,"summary":"CHI-10-004 response to ACCU CHEM Conversion, Inc. concerning 171.1, 171.8.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-004.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-004.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-004","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-10-004.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\n1200 New Jersey Ave., S.E.\nWashington, D.C. 20590\nMaterials Safety Administration\nPipeline and Hazardous\nChief Counsel\nOffice of\n08/23/2010\nMr. Phil Zlaket\nDirector of Manufacturing\nAnd Corporate Compliance\nACCU CHEM Conversion, Inc.\n13226 Nelson Avenue\nCity of Industry, CA 91746\nDear Mr. Zlaket:\nThis responds to your April 16, 2010 letter to Frazer Hilder of my office concerning facilities\noperated by your company at which rail tank cars are received and the liquid hazardous materials\ncontained in the tank cars are transferred to cargo tank motor vehicles for delivery to the ultimate\nrecipient. You ask whether these operations constitute \"transloading\" and are subject to the\nFederal hazardous material transportation law, 49 U.S.C. § 5101 et seq., and the Hazardous\nMaterials Regulations (HMR), 49 C.F.R. parts 171-180.\nAs you describe your company's transfer operations:\n1. Your company owns the track on which the transfer operations take place.\n2. The \"original shipper\" of the hazardous material to your facility is filling an order for\nthis material by its customer, but that shipper does not provide the rail carrier with\ndocumentation which identifies the ultimate recipient of the material. Rather, during the transfer\noperations at your facility, separate documentation is prepared which identifies the \"original\nshipper as the shipper of the cargo tank containing the HM and the end user as the consignee.\"\n3. On occasion, the original shipper of the hazardous material asks you to dilute the\nmaterial with water, and you do this by adding the appropriate amount of water to the cargo tank\njust before transferring the hazardous material from the rail tank car to the cargo tank motor\nvehicle.\nFederal hazardous material transportation law defines \"transports\" and \"transportation\" to mean\n\"the movement of property and loading, unloading, or storage incidental to the movement.\" 49\nU.S.C. § 5101(13). As explained in the HMR, storage incidental to the movement of a\nhazardous material, which is part of transportation of a hazardous material in commerce, does\nnot include \"storage of a hazardous material at its final destination as shown on a shipping\n\n<<<PAGE 2>>>\n\ndocument,\" but does include \"storage at a transloading facility, provided the original shipping\ndocumentation identifies the shipment as a through-shipment and identifies the final destination\nor destinations of the hazardous material.\" § 171.1(c)(4)(i)(A). \"Transloading\" is defined as\n\"the transfer of a hazardous material by any person from one bulk packaging to another bulk\npackaging, from a bulk packaging to a non-bulk packaging, or from a non-bulk packaging to a\nbulk packaging for the purpose of continuing the movement of the hazardous material in\ncommerce.\" 49 C.F.R. § 171.8.\nThese provisions in the HMR were adopted in PHMSA's \"HM-223\" rulemaking. See the final\nrules published October 30, 2003 (68 Fed. Reg. 61906), and April 15, 2005 (70 Fed. Reg.\n20018). As your letter suggests, language in the preamble to these final rules helps to explain\nwhether or not your company's operations are \"transloading\" subject to the HMR, as follows:\nFirst, transfer operations that meet the definition of \"transloading\" in the HMR may take place\non track owned by your company.\nIn the April 15, 2005 final rule, we removed the words \"at an intermodal facility from the\ndefinition of \"transloading\" adopted in the October 30, 2003 final rule because we agreed\nthat \"the location at which transloading occurs should not dictate whether the operation is\nregulated as a transportation function.\" 70 Fed. Reg. at 20020. In this manner, we\n\"clarified] that transloading is regulated under the HMR irrespective of the location at\nwhich the operation occurs.\" Id. at 20021. The language in 49 C.F.R. § 171.1(c)(4)(ii),\nthat \"[s]torage incidental to movement includes rail cars containing hazardous materials\nthat are stored on track that does not meet the definition of 'private track or siding' in\n§ 171.8\" does not mean that the storage may not take place on a \"private track or siding.\"\nSecond, unless some \"original shipping documentation identifies the shipment as a through-\nshipment and identifies the final destination or destinations of the hazardous material\" the\ntransfer operations conducted at your facility do not meet the definition of \"transloading\" and are\nnot \"storage incidental to movement\" of a hazardous material. 49 C.F.R. § 171.1(c)(4)(i)(A).\nIn the October 30, 2003 final rule, we explained that \"storage incidental to movement\" of\na hazardous material \"includes storage by any person between the time that a carrier takes\nphysical possession of a hazardous material for the purpose of transporting it until the\npackage containing the hazardous material is delivered to the destination indicated on\nshipping papers or other documentation.\" 68 Fed. Reg. at 61920. In the April 15, 2005\nfinal rule, we agreed that \"transloading is a transportation function,\" rather than a \"pre-\ntransportation\" activity, but did not modify the condition that \"the original shipping\ndocument include[] information that the shipment is a through-shipment to an identified\ndestination.\" 70 Fed. Reg. at 20020.\nThe discussion of \"transloading\" in these final rules recognized that a \"through-\nshipment\" may involve both rail and highway transportation. Id. We also recognize that\nthe shipping documentation that accompanies the rail portion of a \"through-shipment\"\nmay only show the transfer facility as the destination, but original documentation\nprepared by the \"original shipper,\" before transportation has started, is considered the\n2\n\n<<<PAGE 3>>>\n\nonly reliable evidence of a \"through-shipment.\" The \"three separate documents\" you\ndescribe cannot be \"taken as a whole\" to constitute \"original shipping documentation\" of\na \"through-shipment\" when one of these documents is prepared during the transfer\noperations at your facility. Under that scenario, the original shipper has the ability to\nselect the consignee of what is, essentially, a \"new\" shipment by motor carrier.\nThird, the dilution of the material transported to your facility by rail car, during transfer to a\ncargo tank motor vehicle, creates a different material and is not simply \"storage incidental to\nmovement\" of a hazardous material.\nAs noted above, transloading\" is defined as \"the transfer of a hazardous material by any\nperson from one bulk packaging to another bulk packaging, from a bulk packaging to a\ncontinuing the movement of the hazardous material in commerce.\" 49 C.F.R. § 171.8.\nnon-bulk packaging, or from a non-bulk packaging to a bulk packaging for the purpose of\nWe explained in the October 30, 2003 final rule that \"transloading' is a pure transfer\" of\nthe hazardous material, and it \"does not include operations that involve the transfer of a\nhazardous material from one packaging to another for purposes of mixing, blending, or\notherwise altering the hazardous materials.\" 68 Fed. Reg. at 61919. Thus, the dilution\nthat takes place at your facility is an alteration of the material delivered by the rail carrier,\nso that there is not a \"pure transfer\" from the rail car to cargo tank motor vehicles.\nFinally, we also explained in 49 C.F.R. § 171.1(f)(2) that, even when the transfer operations at a\nfacility meet the definition of \"transloading\" and are \"storage incidental to movement\" of a\nhazardous material, that facility may still be \"subject to applicable laws and regulations of state\nand local governments and Indian tribes,\" so long as those non-Federal requirements are not\npreempted under the criteria set forth in 49 U.S.C. § 5125.\nIn the April 15, 2005 final rule, we added a clarification to § 171.1(f) \"that non-Federal\nentities may impose regulations on functions that are not covered by the HMR or Federal\nhazmat law, except where PHMSA has specifically determined that the regulation of the\nhazardous materials-related function is not necessary. Appellants correctly note that\nPHMSA has in some cases determined that safety or security regulations may not apply\nto all hazardous materials or to specific types of shipments.\" 70 Fed. Reg. at 20025. We\nalso noted that, \"separate from the preemption criteria in 49 U.S.C. 5125, a non-Federal\nrequirement affecting transportation, including the transportation of hazardous materials,\nmay also be preempted under the commerce clause of the United States Constitution or\nother statutes such as 49 U.S.C. 20106, 31141.\" 70 Fed. Reg. at 20024. Thus, a state or\nlocal requirement applying to hazardous materials at a transfer facility, that constitutes an\n\"obstacle\" to accomplishing and carrying out Federal hazardous material transportation\nlaw or the HMR, would be preempted - even if the non-Federal requirement did not\ndirectly apply to a transportation activity.\nIn sum, operations at a transfer facility that fall within the definition of \"transloading\" are\n\"storage incidental to movement\" of the hazardous material and subject to requirements in the\nHMR, but state or local requirements on the transfer facility may not be preempted when those\nnon-Federal requirements do not apply to the subject matters in 49 U.S.C. § 5125(b)(1) and are\n3\n\n<<<PAGE 4>>>\n\nnot otherwise an \"obstacle\" to accomplishing and carrying out Federal hazardous material\ntransportation law and the HMR. Conversely, operations at a transfer facility that do not meet\nthe definition of \"transloading\" would not be \"storage incidental to movement\" of the hazardous\nmaterial and would not be subject to requirements in the HMR, but those non-Federal\nrequirements may be preempted if their practical effect would conflict with requirements in the\nHMR on the subject matters in 49 U.S.C. § 5125(b)(1) or otherwise create an \"obstacle\" to\naccomplishing and carrying out Federal hazardous material transportation law and the HMR.\nI hope this information is helpful. If you need further assistance, you may contact Mr. Hilder at\n202-366-4400.\nSincerely\nBizunesh Scott\nChief Counsel","truncated":false,"body_characters":10041}