{"operation":"document","citation":"CHI-95-002","title":"Dr. Burton Z. Davidson — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1995-08-28","effective_on":null,"summary":"CHI-95-002 concerning 171.15, 171.16.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-95-002.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-95-002.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-95-002","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-95-002.pdf","body":"<<<PAGE 1>>>\n\nUS Department\nof Transportation\nResearch and\nSpecial Programs\nAdministration\n8ff:c c c! the\nCh1ei Cou11 se1\n~-\n•\n. ..--::> .:i::;o Sevemh SI S W\n\\IV ;i sn1'ngton . D (., 2U'.J9(1\nAUG 2 8 1995\nDr. Burton Z. Davidson, Ph.D., P.E.\n5 Hamlet Court\nSomerset, NJ 08873\nDear Dr. Davidson:\nThis responds to your August 21, 1995 letter concerning the\nregulations applicable to the transportation of concentrated\nnitric acid (98% by weight) in non-bulk packagings during the\n1985-86 period.\nIn 1985-86, the Hazardous Materials Regulations (HMR) consisted\nof 49 C.F.R. Parts 171-179 and applied to the transportation of:\n1. all hazardous materials by all air, rail, and water\ncarriers;\n2. all hazardous materials by interstate and foreign\nhighway motor carriers; and\n3. hazardous wastes, hazardous substances, and flammable\ncryogenic liquids in cargo tanks and portable tanks by\nintrastate highway ·motor carriers.\nThis means that the HMR did not (and they presently do not)\napply to non-bulk shipments of nitric acid (if not a hazardous\nwaste) by an intra- state motor carrier by highway. It is the\nstatus of the carrier, not the individual shipment, that ·\ndetermines the applicability of the HMR. (For example, a local\nshipment of hazardous materials by United Parcel Service (UPS) ,\nwithin one city, is always subject to the HMR, because UPS is\nan interstate carrier.) Please note that RSPA has proposed to\nextend the coverage of the HMR to all intrastate carriers in\nrulemaking docket No. HM-200. 58 Fed. Reg. 36920 (July 9,\n1993) , correction 58 Fed. Reg. 38111 (July 15, 1993). Also,\nState requirements equivalent to the HMR may have applied to\na 1985-86 shipment by an intrastate highway motor carrier.\n\n<<<PAGE 2>>>\n\n2\nBoth§§ 173.268(c) (1) and 173.268(d) (1) of the HMR (1985 ed.),\namong other requirements, applied to shipments of nitric acid\nwith a concentration of 90% or more. By its terms, § 173.268(c)\napplied to nitric acid with any concentration of 80% of more;\nit was not limited to nitric acid between 80% and 90%.\nDuring 1985-86, a knowing violation of the HMR was subject to a\ncivil penalty of not more than $10,000 per violation, per day.\nA wilful violation was subject to criminal penalties. There is\nno requirement that there be an \"incident in transportation\"\nfor the Department of Transportation (DOT) to propose or assess\ncivil penalties for violations of the HMR. Most civil penalties\nare assessed in cases where there has not been an \"incident\" in\ntransportation.\nI do not understand your analogy to exceeding the speed limit,\ninasmuch as speeding tickets are routinely issued in instances\nwhere there is no accident or other \"incident.\" If the avail-\nable facts establish a violation of the HMR, an enforcement\ncase may be brought, even if the shipment has reached its\ndestination and transportation has ended. A DOT investigator\nneed not actually observe the improper shipment while it is\nin transportation.\nThe HMR apply to transportation that is \"in commerce.\" RSPA\nhas uniformly interpreted this to mean that movements of\nproperty, and their storage, solely within the confines of\nprivate property, are not subject to the HMR. At the same\ntime, loading, unloading, and storage \"incidental to\"\ntransportation are covered by the HMR.\nYour example of company B receiving a container of nitric\nacid, storing it, then emptying it, and finally reloading it\nis unclear. If that container is being reloaded by company B,\nfor transportation fo- a location away from company B's premises,\nthen the loading process is subject to the HMR, and RSPA must\nbe advised of any reportable incident during loading. See\n§§ 171.15 and 171.16. At the time hazardous materials are\noffered for transportation, they must be packaged, marked,\nlabeled, and accompanied by a shipping paper as required in\nthe HMR. On the other hand, if no transportation off company\nB's premises is involved, the HMR do not apply.\n\n<<<PAGE 3>>>\n\n3\nI hope this information is helpful. If you have further\nquestions, please do not hesitate to contact me or Frazer\nHilder of my staff, at the above address or by telephone at\n202-366-4400.\nSincerely,\n~aL/\nEdward H. Bonz;:;, III\nAssistant Chief Counsel for\nHazardous Material Safety and\nResearch and Technology Law","truncated":false,"body_characters":4251}