{"operation":"document","citation":"CHI-10-0114","title":"FMCSA Office of Enforcement and Compliance — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2010-08-04","effective_on":null,"summary":"CHI-10-0114 response to FMCSA Office of Enforcement and Compliance concerning 171.2.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-0114.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-0114.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-0114","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-10-0114.pdf","body":"<<<PAGE 1>>>\n\nMemorandum\nU.S. Department\nof Transportation\nPipeline and\nHazardous Materials\nSafety Administration\nSubject: Applicability of HMR; State Agency\nInspection of Anhydrous Ammonia Nurse Tanks\nDate:\nAUG\n4 2010\nFrom: Bizunesh Scott, Chief Counsel\nPipeline and Hazardous Materials Safety Administration\nRAn. Ref. No. 10-0114\nTo: John Van Steenburg, Director\nOffice of Enforcement and Compliance\nFederal Motor Carrier Safety Administration (MC-EHC)\nThis responds to your May 19, 2010 request for guidance on the applicability of the Hazardous\nMaterials Regulations (HMR), 49 C.F.R. parts 171-180, to nurse tanks owned by and located on the\nproperty of a private motor carrier. You state that your questions arise \"over the inspection of nurse\ntanks by a state enforcement agency that utilizes the regulations of the state's Department of\nAgriculture that deems nurse tanks to be 'in service' and subject to inspections for compliance with\nPreliminarily, we note that the authority of a state to inspect and regulate packagings containing\nhazardous materials may be a separate and distinct issue from both the applicability of the HMR\nand the authority under 49 U.S.C. § 5121(b) & (c) for DOT officials to \"inspect and investigate...\nrecords and property relating to a function\" covered by the HMR. As discussed in more detail\nbelow, a finding that nurse tanks containing anhydrous ammonia are not \"in transportation\" does\nnot necessarily resolve whether a nurse tank and its contents are subject to: (a) the HMR, (b) state\nrequirements that are consistent or compatible with requirements in the HMR, or (c) inspection of\nthose nurse tanks by Federal or state officials. We respond to your questions as follows:\nQuestion No. 1: Do the HMR apply to nurse tanks located on the property of a distributor that is\nalso a private motor carrier, not connected to a power unit and prior to a driver of a motor vehicle\ntaking physical possession of the hazardous material for movement in commerce?\nAnswer: The HMR \"govern safety aspects, including security, of the transportation of hazardous\nmaterial the Secretary [of Transportation] considers appropriate\" and apply to any person who:\n(i) transports hazardous material in commerce;\n(ii) causes hazardous material to be transported in commerce;\n(iii) designs, manufactures, fabricates, inspects, marks, maintains, reconditions, repairs, or\n\n<<<PAGE 2>>>\n\ntests a package, container, or packaging component that is represented, marked,\ncertified, or sold as qualified for use in transporting hazardous material in commerce;\n(iv) prepares or accepts hazardous material for transportation in commerce;\n(v) is responsible for the safety of transporting hazardous material in commerce;\n(vi) certifies compliance with any requirement under this chapter; or\n(vil) misrepresents whether such person is engaged in any activity under clause (i) through\n(vi).\n49 U.S.C. § 5103(b)(1)(A) & (B).\nA distributor of anhydrous ammonia in nurse tanks may (1) prepare anhydrous ammonia for\ntransportation in commerce, (2) offer anhydrous ammonia for transportation in commerce,\n(3) transport anhydrous ammonia in commerce, (4) represent, mark, or certify that the nurse tank is\nqualified for use in transporting anhydrous ammonia in commerce, or, in some other manner, (5) be\nresponsible for the safety of transporting anhydrous ammonia in commerce. To the extent that the\ndistributor performs any of these functions, it must perform those functions in accordance with the\nrequirements in the HMR, and DOT officials may inspect the distributor's nurse tanks used (or to\nbe used) to transport anhydrous ammonia, review documents reflecting the distributor's\ntransportation (or intended transportation) of anhydrous ammonia, and obtain additional\ninformation regarding the distributor's performance of functions governed by the HMR.\nDOT's authority to \"inspect and investigate... records and property\" relating to the functions\nspecified in 49 U.S.C. § 5103(b)(1), which has been delegated to PHMSA and FMCSA in 49\nC.F.R. §§ 1.53(b)(1) and 1.73(d)(1), respectively, is not limited to observing a nurse tank \"in\ntransportation\" or requiring the carrier to provide records and other information during the course of\na shipment that is between origin and destination. Indeed, PHMSA routinely inspects nurse tanks\nused in anhydrous ammonia service at the distributor's location, when they are not actually moving\non the highway. With respect to a nurse tank that appears to have been prepared for transportation\nWe will continue to exercise our statutory authority to inspect for compliance\nwith the HMR requirements applicable to pre-transportation functions. We will also\ncontinue to exercise our authority to take appropriate enforcement actions when we\ndiscover that a pre-transportation function has been performed in a manner that does\nnot comply with the HMR, even if transportation of the hazardous material in\ncommerce has not yet begun (i.e., the carrier has not yet taken possession of the\nmaterial) or has not been performed at all (i.e., undeclared shipments being offered\nfor transportation). This approach is consistent with our authority under § 5103 of\nFederal hazmat law to regulate activities that affect the safe and secure transportation\nof hazardous materials in commerce.\nOctober 30, 2003 final rule (HM-223), 68 Fed. Reg. 61906, 61912.\nWith respect to a nurse tank that appears to have been used for transportation of anhydrous\nammonia, but does not presently meet all the requirements of 49 C.F.R. § 173.315(m), our\nnvestigator may attempt to (1) confirm that prior shipments were made based on a delivery ticke\nnvoice, or other document reflecting that prior shipment, and (2) determine whether the nurse tan\n2\n\n<<<PAGE 3>>>\n\nwas in the same condition based on questioning the owner or person in possession of the nurse tank.\nIn addition, if there is any evidence that the owner of the nurse tank has in any way represented,\nmarked or certified the nurse tank as qualified for use in transporting anhydrous ammonia, we may\ntake enforcement action for a violation of 49 C.F.R. § 171.2(g):\nNo person may represent, mark, certify, sell, or offer a packaging or\ncontainer as meeting the requirements of this subchapter governing its use in the\ntransportation of a hazardous material in commerce [or the requirements of an\nexemption, a special permit, approval, or registration issued under this subchapter or\nsubchapter A of this chapter] unless the packaging or container is manutactured,\nfabricated, marked, maintained, reconditioned, repaired, and retested in accordance\nwith the applicable requirements of this subchapter. ... The requirements of this\nparagraph apply whether or not the packaging or container is used or to be used for\nthe transportation of a hazardous material.\n49 C.F.R. § 171.2(g) (emphasis supplied).\nIn sum, it is not necessary for DOT to actually observe a nurse tank \"in transportation\" in order to\nconduct an inspection - and then take enforcement action when there is sufficient evidence that the\nnurse tank fails to meet all the requirements in § 173.315(m) at the time of the inspection and/or at\nthe time that anhydrous ammonia was transported in commerce.\nQuestion No. 2: Does a state's agricultural regulation pertaining to a nurse tank that is \"in service\"\nprovide adequate grounds for agents of the state to enforce the HMR when there is no equivalent\nprovision in the HMR (i.e., a tank filled at or above 15 percent capacity is deemed to be \"in\nservice\")?\nAnswer: A state may adopt and enforce requirements in the HMR as a matter of state law, and we\nHMR and the Federal Motor Carrier Safety Regulations, 49 C.F.R. parts 390-397, as a condition of\nreceiving financial assistance under the Motor Carrier Safety Assistance Program. 49 C.F.R.\n§ 350.201. When a state adopts requirements in the HMR, usually by \"incorporating by reference\"\nthose requirements into a state law or regulation, as a technical matter, the state is enforcing its state\nlaw or regulation, rather than directly enforcing the HMR.\nThat is the case in Minnesota, where we understand the activities are taking place that give rise to\nyour inquiry. Minnesota Statutes 221.033 provides that, with certain exceptions, \"no person may\ntransport or offer or accept for transportation within the state of Minnesota a hazardous material,\nhazardous substance, or hazardous waste except in compliance with\" Federal hazardous material\ntransportation law or the HMR, \"which are incorporated by reference.\"\nA state may also adopt additional requirements beyond those in the HMR, or apply specific\nrequirements in the HMR to activities not directly subject to the HMR, so long as such additional or\nexpanded requirements are not preempted by Federal law or the U.S. Constitution. At present we\nhave no information to show that Minnesota's application of certain requirements in the HMR\napplicable to nurse tanks filled with anhydrous ammonia to 15% or more of the tank's capacity -\nwhen the nurse tanks are located on the property of the private motor carrier - is in conflict with the\n3\n\n<<<PAGE 4>>>\n\npreemption criteria in 49 U.S.C. § 5125(a) or (b)(1) of the Federal hazardous material transportation\nlaw, any other Federal law, or the Commerce Clause of the U.S. Constitution.\nOf course, the terms of the state law or regulation adopting requirements in the HMR will\ndetermine whether \"adequate grounds\" exist for a state agent to enforce those requirements. While\nwe have reviewed the Minnesota Department of Agriculture Anhydrous Ammonia Service Policy\nand Vehicle/Equipment Inspection Checklist, we have been unable to confirm that the Minnesota\nDepartment of Agriculture has adopted the requirements in the HMR by regulation as those\nrequirements apply to a nurse tank that is located on the property of a private motor carrier and has\nnot been offered or accepted for transportation or actually entered into transportation. PHMSA and\nits predecessor agencies have declined to find that Federal hazardous material transportation law\npreempts \"an inconsistent or erroneous interpretation of a non-Federal [law or] regulation [which]\nenforcement (e.g., misinterpretation of regulations) do not render such provisions inconsistent' with\nshould be addressed in the appropriate State or local forum, because isolated instances of improper\nFederal hazardous material transportation law.\" Preemption Determination No. 14(R), Houston,\nTexas, Fire Code Requirements on the Stowage, Transportation and Handling of Hazardous\nMaterials, 63 Fed. Reg. 67506, 67510 n. 4 (Dec. 7, 1998) (citations omitted), decision on petition\nfor reconsideration, 64 Fed. Reg. 33949 (June 24, 1999).\nQuestion No. 3: Should violations for specification shortages found on nurse tanks during\ninspections based on state-specific requirements be attributed to specific sections of the HMR?\nAnswer: Technically, we suggest that it would be preferable for a violation of a requirement in the\nHMR, as adopted in state law or regulation, to refer to the state law or regulation \"as incorporating\nby reference\" the specific section of the HMR. However, this would appear to be a matter of form,\nbetter left to state law, and not a ground for finding preemption of the state requirement under\nFederal hazardous material transportation law, another Federal law, or the U.S. Constitution.\nQuestion No. 4: Does the July 7, 2006 letter to Mr. Stephen Cansler (Ref. No. 05-0075) apply in\nthis situation?\nAnswer: That letter answers questions from Mr. Cansler regarding \"will-call\" or \"over the\ncounter\" sales of hazardous materials to a customer and the customer's potential further shipment of\nenforcement of the Minnesota Department of Agriculture requirements, I do not believe that the\nthose materials by air. In the absence of additional information about the application and\nJuly 7, 2006 letter has any relevance to your inquiry regarding a state agency's inspection of nurse\ntanks used for transportation of anhydrous ammonia, whether or not the nurse tanks are actually \"in\ntransportation\" at the time of inspection.\nI hope this answers your questions. If you need additional assistance, please do not hesitate to\ncontact Mike Hilder of my staff at 202-366-6360.\nSincerely,\nstumest Scot\nChief Counsel\n4","truncated":false,"body_characters":12311}