{"operation":"document","citation":"03-0007","title":"Refrigeration Supplies Distributor — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2003-12-19","effective_on":null,"summary":"03-0007 response to Refrigeration Supplies Distributor concerning 171.1, 173.6.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0007.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0007.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0007","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2003/030007.pdf","body":"<<<PAGE 1>>>\n\nof Transportation\nU.S. Department\n400 Seventh St., S.W.\nWashington, D.C. 20590\nResearch and\nSpecial Programs\nAdministration\nDEC 1 9 2003\nMr. Neill Boutilier\nRef. No. 03-0007\nRefrigeration Supplies Distributor\n26021 Atlantic Ocean Drive\nLake Forest,\nCA 92630\nDear Mr.' Boutilier:\nThis is in response to your letter requesting clarification of\nthe requirements under the Hazardous Materials Regulations (HMR;\n49 CFR Parts 171-180) regarding over-the-counter sales of\nhazardous materials. You ask for additional clarification of our\nresponse to a previous interpretation letter (Ref. No. 01-0290)\nhazardous materials that do not meet the materials of trade\ndated May 6, 2002. You state that your questions pertain to\nexceptions in § 173.6 and that your employees are aware that the\ncustomers are transporting hazardous materials in commerce. We\nhave framed our response in the following series of questions and\nanswers •\nQ1. As part of our company training, is it acceptable to\ninstruct our employees not to provide a verbal interpretation of\nthe HMR, at the time of will call, when not asked by the\ncustomer?\nA1. The HMR do not require the offeror to provide an\ninterpretation of the hazardous materials regulations to the\nextent that it may be appropriate with regard to over-the-counter\ncustomer; nowever, we strongly encourage such actions to the\nsales.\nQ2. Is the seller required to include the total weight, shipper's\ncertification and\nequired to\naddress of the recipient of the hazardous\nmaterials on the shipping paper?\nshipping paper as required by Part 172, Subpart C of the HMR,\npaper, therefore, the offeror is responsible for providing a\nthat includes the total weight and shipper's certification.\nofferor is not required to enter the recipient's (consignee's)\naddress on the shipping paper.\n\n<<<PAGE 2>>>\n\n-\n-\n-\nQ3. Is it acceptable to load over 1000 pounds of a Class 2\nretrigerant gas onto a customer's vehicle and provide temporary\nplacaras, upon request, without verifying whether or not the\ndriver of the vehicle has a valid commercial driver's license\n(CDL) with a hazardous materials endorsement?\nA3. The HMR do not require the offeror to verify whether the\ndriver has a valid CDL with a hazardous materials endorsement,\n04. Is the seller responsible for ensuring that the purchaser\nhas properly secured the hazardous materials into their vehicle\nat the time of will call?\nAn offeror who loads hazardous material into a transport\nvehicle must perform the function in conformance with the\nthe carrier is ultimately responsible for ensuring that the load\napplicable requirements in Part 177. (See § 173.30.) However,\nis properly loaded and secured before transporting the material\nin commerce.\nFor your information, on March 25, 2003, a final rule was\npublished in the Federal Register (68 FR 14510) under Docket No.\nRSPA-02-12064 (HM-232) requiring security awareness to be\nincluded in all hazardous material employee training (see\n§ 172.704 (a) (4)). In addition, persons who offer for\ntransportation or transport certain hazardous materials (see Part\n172, Subpart I) must develop and implement security plans.\nI hope this information is helpful. If you have additional\nquestions, please do not hesitate to contact this office.\nSincerely,\nHothe a Mithell\nHattie I. Mitchell\nRegulatory Review and Reinvention\nOffice of\nHazardous Materials Standards\n\n<<<PAGE 3>>>\n\nREFRIGERATION SUPPLIES DISTRIBUTOR\nR\nTC\nTOTAL CONTROL\na division of ST\n26021 ATLANTIC OCEAN DRIVE, LAKE FOREST, CALIFOPINIA 92630 (949) 380-7878 FAX (949) 380-9332\nMcintyre\n(/16ja\n3171.1\nEdward Mazzullo, Director\n53173-6(c)4)\n12/20/02\n• Office of Hazardous Materials Standards\nResearch and Special Programs Administration\nApplicability/\nU.S. Department of Transportation\nMOT\n400 7' Street, SW\nWashington D.C. 20590-0001\n03-0007\nDear Mr. Mazzullo,\nI am writing you in regards to your letter of interpretation to Mr. Romach (reference #\n01-0290). Our company is Refrigeration Supplies Distributor, a wholesaler of\ncommercial refrigeration and heating products for the HVAC industry. Our customer\nbase is exclusive to licensed contractors who, for the purpose of this letter, \"will call'\nmaterial in weights above the material of trade exceptions. This letter does not pertain to\nour own deliveries or to those of a contracted carrier. The regulations that require\ntraining for companies involved in the transportation of hazardous materials are well.\nknown among our industry. This has been the subject of multiple articles within our\ntrade publications. We are requesting further clarification to some of your responses to\nMr. Romach's questions, as well as, additional concerns that our company has pertaining\nto our specific business situation. Our specific goal is to determine the legality of\ndrafting a disclaimer to our \"will call' customers. One that would indicate that at the time\nof the 'will call' of a hazardous material; the purchaser would become the shipper of the\nhazardous material. The purchaser would then be subject to all of the regulations of the\nHMR that would apply to a shipper transporting a hazardous material in commerce.\nI am framing this next portion of our letter in a bullet format summary of questions taken\nfrom Mr. Romach's letter, each directly followed by your response in italics. I am\nincluding your responses as a point of reference for further clarification that will be\nrequested in the form of numbered questions of interpretation directly from our company.\n• For the purpose of the materials of trade exceptions, who is responsible for\ninforming the operator of a motor vehicle of the requirements found in the HMR?\n(Referring to 173.6)\n\"The motor vehicle operator's employer would be responsible for providing this\n• information. However, in practice, it may be necessary for an over-the-counter sales\nemployee to be able to distinguish between those types and quantities of hazardous\nmaterials that qualify for the materials of trade exceptions, and those that do not, in\norder to determine whether the material of trade exemptions apply.\"\n=..\n2000\n3083/3\n\n<<<PAGE 4>>>\n\nIf the requirements of the materials of trade exceptions are not met for example,\nthe total quantity exceeds 440 pounds gross weight or an individual package is\nlarger than allowed), do the HMR apply to over-the-counter sales of hazardous\nmaterials?\n\"Yes. The seller of hazardous materials over-the-counter is an 'offeror' who is\nresponsible for assuring that the materials are packaged, labeled, and described on a\n•shipping paper as required by the HMR whenever the over-the-counter sales\nemployee knows (or has reason to know) that the customer will transport the\nhazardous material in commerce (such as the customer is transporting the hazardous\nmaterial as part of a business). \"\n• Does the over-the-counter purchaser of hazardous materials become the shipper\n• (offeror) responsible for compliance with the HMR when it takes 'ownership' of .\n... i\nthe materials upon purchase?\n\"No. The status of an offeror does not depend on ownership. Under most circumstances,\nthe purchaser of hazardous materials over-the-counter is a carrier (or transporter) who\nmay not accept and transport hazardous materials that are not in compliance with\nresponsibilities of an offeror. \"\nIs an over-the-counter sales employee responsible for asking purchasers of\nG.r.\nhazardous materials whether they will be transporting the materials in commerce?\n\"The HMR do not require a person selling hazardous materials to ask specific questions,\nbut it may be appropriate under the circumstances of over-the-counter sales. The over-\nthe-counter sales employee must consider readily apparent facts that indicate a customer\nwill transport the purchased hazardous materials in commerce. The employee would not\nbe 'absent the knowledge' its customer will transport the purchased hazardous material\nin commerce when a reasonable person would realize that the customer is purchasing the\nhazardous material for use at (or delivery to) another location as part of any type of\n....\nbușiness enterprise.\"\nBefore, I move on to our own specific questions, it should be clear that our employees,\nfor the most part, would not be 'absent the knowledge\" that our customers will be\ntransporting hazardous material in commerce. This is due largely to the fact that when\nmaterial is purchased in weights above the material of trade exceptions our employees\ntypically load it on our customer's vehicle as a service to our customers.\nQ1 - As part of our company training, is it acceptable to instruct our employees to not\nprovide a verbal interpretation of the HMR, at the time of the will call, without being\n...\nprompted by our customers to do so? Furthermore, to not provide shipping papers,\nplacards, or material safety data sheets without first being requested to do so.\n•\n8002\n20/82\n\n<<<PAGE 5>>>\n\n!!\nQ2 - Would it be acceptable to provide our 'will call' customers (not a contracted\ncarrier), upon request, with a pre-printed shipping paper listing the proper description of\nthe hazardous material, while excluding the 'ship to' address, weight totals, and\ncertification (signature)? Our position would be that our company would still be in\ncompliance with 173.22 of the HMR by ensuring that the materials have been properly\npackaged, labeled, and described on a shipping paper. It would be the customer's\nresponsibility to record the 'ship to' address (this information would only be pertinent to\nthe purchaser), weight totals (there is always a possibility of more material already on\ntheir vehicle at the time of will call), and finally the certification (signature), which in our\nopinion due to the fact that they are not a contracted carrier, must be made by the\nindividual who has purchased and is transporting the hazardous material.\n1000 pounds of a class 2 refrigerant gas onto a customer's vehicle, provide temporary\nQ3 - As part of our compliance with 172.506 of the HIMR, is it acceptable to load over a\nplacards, upon request, without verifying whether or not the driver of the vehicle has in\ntheir possession a valid commercial drivers license with a hazardous materials\nendorsement?\nQ4 - Would it be the responsibility of the seller to ensure that the purchaser has properly\nsecured the hazardous material onto their vehicle at the time of will call?\nIn closing, as stated before our main reason for writing this letter of interpretation is for\nclarification regarding the legality of drafting a disclaimer to our customers. One that\nwould indicate that at the time of 'will call' of a hazardous material; the purchaser would\necome the slupper of the hazardous material. The purchaser would then be subject to all\nof the regulations of the HMR that would apply to a shipper transporting a hazardous\nmaterial in commerce.\nYour response to our specific request and to our related questions would be greatly\nappreciated.\n....\n....\nRefrigeration Supplies Distributor\nNeill Boutile\n...:\nNeill Boutilier\nnboutilier@rsd-tc.com\n:. :\n...\".\n:\n:.\n•..\n700 D\n088\n686 ХE İ\n20/8z","truncated":false,"body_characters":11051}