{"operation":"document","citation":"04-0274","title":"Hitachi Transport System (America) Ltd — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2005-09-08","effective_on":null,"summary":"04-0274 response to Hitachi Transport System (America) Ltd concerning 173.22.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0274.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0274.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-04-0274","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2004/040274.pdf","body":"<<<PAGE 1>>>\n\nof Transportation\nU.S. Department\nWashington, D.C. 20590\n400 Seventh Street, S.W.\nPipeline and\nAdministration\nHazardous Materials Safety\nSEP\n8 2005\nMs. Gina Lupian\nRef. No.: 04-0274\nSan Diego Sales and Service Division\nHitachi Transport System (America) Ltd.\n2222 Enrico Fermi Drive\nSan Diego, California 92154\nDear Ms. Lupian:\nThis responds to your December 1, 2004 letter requesting clarification concerning the\napplicability of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to\ninternational shipments. Please accept my apology for our delay in responding and any\ninconvenience this may have caused.\nYour letter presents the following scenario:\nCompany ABC manufactures Product XYZ and registers with a third-party\nprovider of 24-hour emergency response services. Company ABC\nprepares Product XYZ for shipment to Mexico and offers the shipment to a\nmotor carrier for transportation. The shipping paper indicates that\nCompany ABC is the shipper and that the consignee is a freight forwarder\nforwarder's warehouse at the border. Product XYZ is unloaded and held at\nat the port of export. The motor carrier delivers the shipment to the freight\nthe shipment across the border into Mexico (usually the same or the next\nthe warehouse until the freight forwarder receives instructions to transport\ndocumentation, aid a newshipate paper that indicates the recustoms\nYour questions are paraphrased and answered as follows:\nQ1.\nDo the HMR distinguish between the terms \"offeror\" and \"shipper\"?\nAl.\nNo. The terms \"offeror\" and \"shipper\" generally are used interchangeably in the\nHMR.\nQ2. In the scenario described above, which entity is the offeror of the shipment -\nCompany ABC or the freight forwarder?\n113.22\n040274\n\n<<<PAGE 2>>>\n\nA2. In the scenario provided, both Company ABC and the freight forwarder are\nofferors of Product XYZ because both entities performed offeror functions related to the\nshipment. Under the HMR, any person who performs an offeror function is an offeror of\nthe hazardous materials. Offeror functions are functions performed to prepare a shipment\nfor transportation, including assigning a hazard class to a material, selecting a packaging\nfor the material, filling and closing the packaging, marking and labeling the packaging,\nand preparing shipping documentation and emergency response information to accompany\nthe shipment. There may be more than one offeror of a shipment of hazardous materials;\nhowever, each offeror is responsible only for the specific offeror functions that it\nperforms. Further, each offeror may rely on information provided by another offeror,\nunless an offeror knows or has reason to believe that the information provided by the other\nofferor is incorrect.\n03.\nAt the freight forwarder's warehouse, is the person loading the hazardous material\nonto a motor carrier for transportation across the border an offeror or is the freight\nforwarder the offeror?\nA3. The freight forwarding company is generally considered to be an offeror for\npurposes of the HMR. Company employees who directly affect the safety of the\nhazardous material during transportation, such as employees who load a hazardous\nmaterial onto a motor vehicle, are \"hazmat employees\" of the freight forwarder (see\n§ 171.8 of the HMR). Hazmat employees must be trained in accordance with Subpart H\nof Part 172 of the HMR.\nQ4.\nMay the freight forwarder duplicate the information provided by Company ABC,\nincluding the emergency response telephone number provided by Company ABC, on the\nshipping paper prepared for transporting the hazardous material into Mexico?\nA4. Yes. As indicated above, when preparing a hazardous materials shipment for\nrely on information provided by the initial offeror of the shipment unless it knows or\nfurther transportation, a freight forwarder or other subsequent offeror of the shipment may\nshould have known that the information provided is incorrect. In the scenario provided,\nthe freight forwarder may use the emergency response number provided by the initial\nofferor unless the freight forwarder is aware (or should be aware) of facts indicating that\nthe emergency response telephone number is not operative and does not meet the\nrequirements of § 172.604(b) of the HMR.\nQ5.\nIf a freight forwarder uses the emergency response number provided by the initial\nofferor of the shipment on shipping papers prepared by the freight forwarder, must the\nfreight forwarder register with the emergency response provider?\nA5.\nIn accordance with § 172.604, a person who offers a hazardous material for\ntransportation must provide an emergency response telephone number for use in the event\nof an emergency involving the hazardous material. The telephone number must be the\nnumber of the offeror or the number of an agency or organization capable of, and\naccepting responsibility for, providing detailed information about the hazardous material.\n\n<<<PAGE 3>>>\n\nAs indicated above, a freight forwarder may use the emergency response number provided\nby the initial offeror on shipping papers it prepares for subsequent transportation of the\nhazardous material unless the freight forwarder knows or should have known of facts\nindicating that the emergency response telephone number is not operative or does not\nmeet the requirements of § 172.604(b) of the HMR. The HMR do not require a freight\nforwarder or other subsequent offeror to register with the emergency response provider if\nthe initial offeror furnishes the emergency response telephone number. However, the\nemergency response provider may require evidence, such as the initial offeror's name or\nregistration number, indicating that the initial offeror has contracted for emergency\nresponse services. An indication of this contractual relationship on the shipping paper\nservice, ensuring compliance with § 172.604. Accordingly, a person who arranges with\nensure that the shipping papers that accompany the shipment include the information\nnecessary to enable the provider to identify the person who has contracted for the services.\nThis may necessitate special arrangements with subsequent offerors or carriers that will\ntransfer the information provided by the original offeror to subsequent shipping papers.\nQ6.\nMust the offeror's name and address appear on the shipping paper? If so, should\nthe shipping paper indicate the name and address of the initial offeror (Company ABC) or\na subsequent offeror (freight forwarder)?\nA6.\nExcept for vessel and hazardous waste shipments, the HMR do not require a\nshipping paper to include the name and address of the person offering the shipment for\ntransportation. A shipping paper may include the name and address of the offeror, the\nconsignee, or any other party.\nIn the event of a spill, what information does the emergency responder need to\nprovide to the emergency response telephone service to verify that the shipment is covered\nby the service?\nA7.\nThe information required will depend on the service being utilized. Generally the\nemergency response telephone service provider will require the shipper's name or\nregistration number to verify that the shipment is covered by the service.\nQ8.\nIf a freight forwarder consolidates hazardous materials shipments from more than\none company, which emergency response telephone numbers must be placed on the\nshipping paper prepared by the freight forwarder?\nThe shipping paper must include all the emergency response telephone numbers\napplicable to the consolidated shipments. Emergency response telephone numbers must\nbe entered on the shipping paper immediately following the description of each hazardous\nmaterial or must be entered once in a clearly visible location if the number applies to all\nhazardous materials listed on the paper (see § 172.604(a)(3)). When more than one\ntelephone number is required, the shipper may elect to identify each hazardous material on\n\n<<<PAGE 4>>>\n\na separate sheet of paper that includes the applicable emergency response telephone\nnumber.\nQ9. How are penalties assessed? Does a hazardous materials spill always result in a\npenalty? Does having \"control\" determine responsibility and liability in the event of a\nspill?\nA9.\nEach person who offers a hazardous material for transportation or transports a\nhazardous material in commerce is responsible for compliance with the requirements of\nthe HMR, or an exemption, approval, or registration issued under the HMR, with respect\nto any regulated function that it performs or is required to perform. However, each person\nis responsible only for the specific regulated functions that it performs or is required to\nperform. Penalties for violations of the HMR are assessed on a case-by-case basis and\ndepend on a number of factors, including the nature, circumstances, extent, and gravity of\nthe violation. A spill may or may not result in a penalty depending on the cause of the\nspill and whether it is related to non-compliance with the HMR. Enforcement: program\nprocedures and civil penalty guidelines are set forth in 49 CFR Part 107, Subpart D.\nUnder the HMR, each person in possession of a hazardous material during its\ntransportation must report certain incidents involving the hazardous material to the\nPipeline and Hazardous Materials Safety Administration (PHMSA). The specific\nrequirements for incident reporting are contained in §§ 171.15 and 171.16. For incidents\nthat meet the criteria listed in § 171.15(b) of the HMR, the person in possession of the\nhazardous material must report the incident by telephone to the National Response Center\nat the number indicated in § 171.15(a). For incidents that meet the criteria listed in\n§ 171.16(a), the person in possession of the hazardous material must submit a written\nHazardous Materials Incident Report to PHMSA.\nI hope this information is helpful. Please contact us if you require additional assistance.\nSincerely,\nJan\nSusan Gorsky\nActing Director, Office of Hazardous\nMaterials Standards\n\n<<<PAGE 5>>>\n\n12/01/2004\n17:27\nHITACHI TRANSPORT → 912023668700\nNO. 205\nРUU2\nHitachi Transport System (America), Ltd.\n8863 Siempre Viva Road • San Diego, CA 92154\nTelephone 619.941.3600 • Fax 619.941.3620\nSatterthwaite\n$173.22\nDecember 1, 2004\nShipper's Responsibit.\n04-0274\nEdward Mazzallo\nDepi, of Transportation - RSPA\n400 7th Street, S.W.\nOffice of HazMat Standards\nWashington D.C. 20590\nDear Mr. Mazzullo:\nHitachi Trausport System America Ltd. respectfully requests clarification of the applicability of the US DOT\nbazardous materials regulatiots to issues regarding the scenario presented:\nResponse compatty. Company ABC loads Product XYZ to a transportation carrier, provides the trucker with\nCompany ABC is the manufacturer of product XYZ. Product XYZ is registered with a 24 Hour Emergency\nEmergency Response #), etc. On the Haz Mar bill of lading, Company ABC indicates they are the shipper and that\nHaz Mat Bill of Lading (800 Emergency Response # is listed on the B/L), Packing List, MSDS (also lists the 800\nthe consignee is a Freight Forwarder at the port of export.\nlading is signed off as \"received\" by the FF, Product XYZ is un-loaded and held in the warehonse until they receive\nThe trucker delivers the cargo to the Freight Forwarder's (FF) warehouse at the border, Company ABC's bill of\ninstructions are received to proceed to cross the cargo to Mexico (usually same day or ore day later). The\nimport into Mexico, as well as the Haz Mat bill of lading. The FF shows his company as the shipper (or are we\nFF/coordinator prepares the commercial invoice, Customs documentation for both export from the U.S. and the\nthe offeror?)\nFor clarification I have prepared several questions:\n1. Is Company ABC cousidered the shipper since they still have ownership of the cargo until it\n2. Does Company ABC remain the shipper even though a new Haz Mat bill of lading is prepared\nreaches final destination in Mexico?\nWhat is the difference between an \"offeror\" and a shipper?\nfor another trucker to transport the cargo to Mexico?\n4.\n5.\nOr is the FF considered the \"offeror\" and or \"shipper\"? Can he be both?\nIs the shipper going to be the FF who has sub-contracted the trucker to cross to Mexico?\n7.\nCan the Haz Mat bill of lading show Company ABC c/oFF and the FF address?\n8.\nDoes having \"control\" play a significant role in responsibility and liability, in the event of a spill\nAt what point is Company ABC considered to have lost control of the cargo?\nCan the FF duplicate all the information from Company ABC's bill of lading including the 800\nEmergency Response Number, even though the FF is not registered with any Emergency\n10. Does the FF have to be registered with an Emergency Response Group, why or why not?\nResponse Group?\nI1. Does the trucker have to be registered with an Emergency Response Group, why or why not?\n12. Ia the event of a spill, does the agency calling in to the Emergency Response Group identify the\n13. Why ist't the owners registration number required on the MSDS document or the Bill of Lading,\nshipper or the product name to confirm registration\nalong with the 800 Emergency Response number\n14. How are penalties assessed? Where does it begin: from Company ABC, the FF or the trucker?\n\n<<<PAGE 6>>>\n\n12/01/2004\n17:27\nHITACHI TRANSPORT → 912023668700\nNO. 205\nP003\n15. How is it determined who caused the damage, does it work backwards starting with the trucker,\n16. Does a spill always result in a penalty, or is it more of a huge cost factor for the company that\nto the warehouse loader, FF who prepared the paperwork, or Company ABC?\ncaused it?\n:.. ::\n17. Is the warehouse loader considered an offeror or is it basically the whole corpany considered an\n18. If the freight forwarder loads Haz Mat from several suppliers, and they all have their own\nofferor?\nthe bill of lading?\nrespective 800 Emergency Response number, is it required that all the 800 nunbers are shown on\nconvenience. If you have further questions or comments, please do not hesitate to contact me at (619) 941-3609 or\nAs these questions are a concern currently, your kind attention and consideration is requested at your earliest\nthrough my e-mail address: glupian@hitachitransport.com.\nThank you very touch it is appreciated,\nRespectfully yours,\nHITACHI TRANSPORT SYSTEM (AMERICA) LTD\nQura Lupian\nProject Manager\nGona Lupial","truncated":false,"body_characters":14272}