Hitachi Transport System (America) Ltd — Hazardous Materials Safety Interpretation

Page 1of Transportation U.S. Department Washington, D.C. 20590 400 Seventh Street, S.W. Pipeline and Administration Hazardous Materials Safety SEP 8 2005 Ms. Gina Lupian Ref. No.: 04-0274 San Diego Sales and Service Division Hitachi Transport System (America) Ltd. 2222 Enrico Fermi Drive San Diego, California 92154 Dear Ms. Lupian: This responds to your December 1, 2004 letter requesting clarification concerning the applicability of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to international shipments. Please accept my apology for our delay in responding and any inconvenience this may have caused. Your letter presents the following scenario: Company ABC manufactures Product XYZ and registers with a third-party provider of 24-hour emergency response services. Company ABC prepares Product XYZ for shipment to Mexico and offers the shipment to a motor carrier for transportation. The shipping paper indicates that Company ABC is the shipper and that the consignee is a freight forwarder forwarder's warehouse at the border. Product XYZ is unloaded and held at at the port of export. The motor carrier delivers the shipment to the freight the shipment across the border into Mexico (usually the same or the next the warehouse until the freight forwarder receives instructions to transport documentation, aid a newshipate paper that indicates the recustoms Your questions are paraphrased and answered as follows: Q1. Do the HMR distinguish between the terms "offeror" and "shipper"? Al. No. The terms "offeror" and "shipper" generally are used interchangeably in the HMR. Q2. In the scenario described above, which entity is the offeror of the shipment - Company ABC or the freight forwarder? 113.22 040274#

Page 2A2. In the scenario provided, both Company ABC and the freight forwarder are offerors of Product XYZ because both entities performed offeror functions related to the shipment. Under the HMR, any person who performs an offeror function is an offeror of the hazardous materials. Offeror functions are functions performed to prepare a shipment for transportation, including assigning a hazard class to a material, selecting a packaging for the material, filling and closing the packaging, marking and labeling the packaging, and preparing shipping documentation and emergency response information to accompany the shipment. There may be more than one offeror of a shipment of hazardous materials; however, each offeror is responsible only for the specific offeror functions that it performs. Further, each offeror may rely on information provided by another offeror, unless an offeror knows or has reason to believe that the information provided by the other offeror is incorrect. 03. At the freight forwarder's warehouse, is the person loading the hazardous material onto a motor carrier for transportation across the border an offeror or is the freight forwarder the offeror? A3. The freight forwarding company is generally considered to be an offeror for purposes of the HMR. Company employees who directly affect the safety of the hazardous material during transportation, such as employees who load a hazardous material onto a motor vehicle, are "hazmat employees" of the freight forwarder (see § 171.8 of the HMR). Hazmat employees must be trained in accordance with Subpart H of Part 172 of the HMR. Q4. May the freight forwarder duplicate the information provided by Company ABC, including the emergency response telephone number provided by Company ABC, on the shipping paper prepared for transporting the hazardous material into Mexico? A4. Yes. As indicated above, when preparing a hazardous materials shipment for rely on information provided by the initial offeror of the shipment unless it knows or further transportation, a freight forwarder or other subsequent offeror of the shipment may should have known that the information provided is incorrect. In the scenario provided, the freight forwarder may use the emergency response number provided by the initial offeror unless the freight forwarder is aware (or should be aware) of facts indicating that the emergency response telephone number is not operative and does not meet the requirements of § 172.604(b) of the HMR. Q5. If a freight forwarder uses the emergency response number provided by the initial offeror of the shipment on shipping papers prepared by the freight forwarder, must the freight forwarder register with the emergency response provider? A5. In accordance with § 172.604, a person who offers a hazardous material for transportation must provide an emergency response telephone number for use in the event of an emergency involving the hazardous material. The telephone number must be the number of the offeror or the number of an agency or organization capable of, and accepting responsibility for, providing detailed information about the hazardous material.#

Page 3As indicated above, a freight forwarder may use the emergency response number provided by the initial offeror on shipping papers it prepares for subsequent transportation of the hazardous material unless the freight forwarder knows or should have known of facts indicating that the emergency response telephone number is not operative or does not meet the requirements of § 172.604(b) of the HMR. The HMR do not require a freight forwarder or other subsequent offeror to register with the emergency response provider if the initial offeror furnishes the emergency response telephone number. However, the emergency response provider may require evidence, such as the initial offeror's name or registration number, indicating that the initial offeror has contracted for emergency response services. An indication of this contractual relationship on the shipping paper service, ensuring compliance with § 172.604. Accordingly, a person who arranges with ensure that the shipping papers that accompany the shipment include the information necessary to enable the provider to identify the person who has contracted for the services. This may necessitate special arrangements with subsequent offerors or carriers that will transfer the information provided by the original offeror to subsequent shipping papers. Q6. Must the offeror's name and address appear on the shipping paper? If so, should the shipping paper indicate the name and address of the initial offeror (Company ABC) or a subsequent offeror (freight forwarder)? A6. Except for vessel and hazardous waste shipments, the HMR do not require a shipping paper to include the name and address of the person offering the shipment for transportation. A shipping paper may include the name and address of the offeror, the consignee, or any other party. In the event of a spill, what information does the emergency responder need to provide to the emergency response telephone service to verify that the shipment is covered by the service? A7. The information required will depend on the service being utilized. Generally the emergency response telephone service provider will require the shipper's name or registration number to verify that the shipment is covered by the service. Q8. If a freight forwarder consolidates hazardous materials shipments from more than one company, which emergency response telephone numbers must be placed on the shipping paper prepared by the freight forwarder? The shipping paper must include all the emergency response telephone numbers applicable to the consolidated shipments. Emergency response telephone numbers must be entered on the shipping paper immediately following the description of each hazardous material or must be entered once in a clearly visible location if the number applies to all hazardous materials listed on the paper (see § 172.604(a)(3)). When more than one telephone number is required, the shipper may elect to identify each hazardous material on#

Page 4a separate sheet of paper that includes the applicable emergency response telephone number. Q9. How are penalties assessed? Does a hazardous materials spill always result in a penalty? Does having "control" determine responsibility and liability in the event of a spill? A9. Each person who offers a hazardous material for transportation or transports a hazardous material in commerce is responsible for compliance with the requirements of the HMR, or an exemption, approval, or registration issued under the HMR, with respect to any regulated function that it performs or is required to perform. However, each person is responsible only for the specific regulated functions that it performs or is required to perform. Penalties for violations of the HMR are assessed on a case-by-case basis and depend on a number of factors, including the nature, circumstances, extent, and gravity of the violation. A spill may or may not result in a penalty depending on the cause of the spill and whether it is related to non-compliance with the HMR. Enforcement: program procedures and civil penalty guidelines are set forth in 49 CFR Part 107, Subpart D. Under the HMR, each person in possession of a hazardous material during its transportation must report certain incidents involving the hazardous material to the Pipeline and Hazardous Materials Safety Administration (PHMSA). The specific requirements for incident reporting are contained in §§ 171.15 and 171.16. For incidents that meet the criteria listed in § 171.15(b) of the HMR, the person in possession of the hazardous material must report the incident by telephone to the National Response Center at the number indicated in § 171.15(a). For incidents that meet the criteria listed in § 171.16(a), the person in possession of the hazardous material must submit a written Hazardous Materials Incident Report to PHMSA. I hope this information is helpful. Please contact us if you require additional assistance. Sincerely, Jan Susan Gorsky Acting Director, Office of Hazardous Materials Standards#

Page 512/01/2004 17:27 HITACHI TRANSPORT → 912023668700 NO. 205 РUU2 Hitachi Transport System (America), Ltd. 8863 Siempre Viva Road • San Diego, CA 92154 Telephone 619.941.3600 • Fax 619.941.3620 Satterthwaite $173.22 December 1, 2004 Shipper's Responsibit. 04-0274 Edward Mazzallo Depi, of Transportation - RSPA 400 7th Street, S.W. Office of HazMat Standards Washington D.C. 20590 Dear Mr. Mazzullo: Hitachi Trausport System America Ltd. respectfully requests clarification of the applicability of the US DOT bazardous materials regulatiots to issues regarding the scenario presented: Response compatty. Company ABC loads Product XYZ to a transportation carrier, provides the trucker with Company ABC is the manufacturer of product XYZ. Product XYZ is registered with a 24 Hour Emergency Emergency Response #), etc. On the Haz Mar bill of lading, Company ABC indicates they are the shipper and that Haz Mat Bill of Lading (800 Emergency Response # is listed on the B/L), Packing List, MSDS (also lists the 800 the consignee is a Freight Forwarder at the port of export. lading is signed off as "received" by the FF, Product XYZ is un-loaded and held in the warehonse until they receive The trucker delivers the cargo to the Freight Forwarder's (FF) warehouse at the border, Company ABC's bill of instructions are received to proceed to cross the cargo to Mexico (usually same day or ore day later). The import into Mexico, as well as the Haz Mat bill of lading. The FF shows his company as the shipper (or are we FF/coordinator prepares the commercial invoice, Customs documentation for both export from the U.S. and the the offeror?) For clarification I have prepared several questions: 1. Is Company ABC cousidered the shipper since they still have ownership of the cargo until it 2. Does Company ABC remain the shipper even though a new Haz Mat bill of lading is prepared reaches final destination in Mexico? What is the difference between an "offeror" and a shipper? for another trucker to transport the cargo to Mexico? 4. 5. Or is the FF considered the "offeror" and or "shipper"? Can he be both? Is the shipper going to be the FF who has sub-contracted the trucker to cross to Mexico? 7. Can the Haz Mat bill of lading show Company ABC c/oFF and the FF address? 8. Does having "control" play a significant role in responsibility and liability, in the event of a spill At what point is Company ABC considered to have lost control of the cargo? Can the FF duplicate all the information from Company ABC's bill of lading including the 800 Emergency Response Number, even though the FF is not registered with any Emergency 10. Does the FF have to be registered with an Emergency Response Group, why or why not? Response Group? I1. Does the trucker have to be registered with an Emergency Response Group, why or why not? 12. Ia the event of a spill, does the agency calling in to the Emergency Response Group identify the 13. Why ist't the owners registration number required on the MSDS document or the Bill of Lading, shipper or the product name to confirm registration along with the 800 Emergency Response number 14. How are penalties assessed? Where does it begin: from Company ABC, the FF or the trucker?#

Page 612/01/2004 17:27 HITACHI TRANSPORT → 912023668700 NO. 205 P003 15. How is it determined who caused the damage, does it work backwards starting with the trucker, 16. Does a spill always result in a penalty, or is it more of a huge cost factor for the company that to the warehouse loader, FF who prepared the paperwork, or Company ABC? caused it? :.. :: 17. Is the warehouse loader considered an offeror or is it basically the whole corpany considered an 18. If the freight forwarder loads Haz Mat from several suppliers, and they all have their own offeror? the bill of lading? respective 800 Emergency Response number, is it required that all the 800 nunbers are shown on convenience. If you have further questions or comments, please do not hesitate to contact me at (619) 941-3609 or As these questions are a concern currently, your kind attention and consideration is requested at your earliest through my e-mail address: glupian@hitachitransport.com. Thank you very touch it is appreciated, Respectfully yours, HITACHI TRANSPORT SYSTEM (AMERICA) LTD Qura Lupian Project Manager Gona Lupial#