{"operation":"document","citation":"05-0075","title":"SJC Compliance Education, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2006-07-07","effective_on":null,"summary":"05-0075 response to SJC Compliance Education, Inc. concerning 171.1.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0075.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0075.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-05-0075","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2005/050075.pdf","body":"<<<PAGE 1>>>\n\nof Transportation\nU.S. Department\nWashington, D.C. 20590\n400 Seventh Street, S.W\nPipeline and\nHazardous Materials Safety\nAdministration\nJUL\ni 2006\nMr. Stephen Cansler\nRef. No. 05-0075\nSJC Compliance Education,\n16516 El Camino Real\nInc.\nSuite\n417\nHouston, TX 77062\nDear\nMr. Cansler:\nThis responds to your letter concerning the applicability of\n180) to a company that sells and distributes hazardous\nthe Hazardous Materials Regulations (HMR; 49 CFR Parts 171-\nmaterials to customers who may subsequently reship the\nmaterials.\nresponsibility for compliance with the HMR under a variety\nSpecifically, you ask about the company's\nof different scenarios. I apologize for the delay in\nquestions are paraphrased and answered below.\nand any inconvenience it may have caused. Your\nQ1. A company sells hazardous materials to customers who\nmaterial sold is usually ORM-D material, but it is not\npick up the materials from the company's facility.\nThe\npackaged, marked, or labeled for transportation. The\ncompany\ndoes not release orders\n: to commercial carriers.\nWhat\nis the company's responsibility for compliance with the\nHMR?\nA1.\ntransportation of hazardous materials in commerce.\nThe HMR apply to the offering for transportation or\nTransportation of hazardous materials by an individual for a\nnon-commercial purpose in a private motor vehicle is not\nhazardous\nsubject to the HMR (see §\n171.1 (a) (6)).\nA company selling\nmaterials to a private individual is not subject\nto a commercial customer (that is, someone who is\nto the HMR.\nHowever, if\na company sells hazardous materials\ntransporting the hazardous materials for a commercial\npurpose), then the seller must comply with all applicable\nsold to commercial customers may qualify for the exceptions\nprovisions of the HMR.\nfrom specification packaging, hazard communication, and\n171.1 (d) (6)\n173.22\n050075\n\n<<<PAGE 2>>>\n\nother HMR requirements applicable to materials of trade (see\n§ 173.6).\nQ2. A company sells hazardous materials to a customer, who\nthen may reship the material by air. Examples include an\nairline that may reship the hazardous materials as company-\nowned materials, a U.S. government agency, an APO address,\nor a distributor. Is the company or the customer who\nrequirements for transportation of hazardous materials by\nreships the material responsible for compliance with HMR\naircraft?\nA2. See Al above. A company selling hazardous materials to\na commercial customer must comply with all applicable\nprovisions of the HMR. However, if the commercial customer\nthen reships the hazardous material, the commercial customer\nensure that the shipment conforms to all applicable HMR\nrequirements.\nI trust this\nwe can be of\n• satisfies your inquiry.\nPlease contact us if\nfurther assistance.\nSincerely,\nHitle z. Matill\nHattie L. Mitchell\nChief,\nOffice of Hazardous Materials Standards\nRegulatory Review and reinvention\n\n<<<PAGE 3>>>\n\nStEvens\n$173.22\nSjC\n16516 El Camino Real, Suite 417\nCOMPLIANCE\nHouston, TX 77062\nShipper's Responsibility\n05-0075'\n281.486.2490: fax: 281.480.3852\nstevec@compliance-solution.com\nFAX TRANSMISSION\nDATE: March 28, 2005\nFROM: Stephen Cansler\nTO: Shane Kelly\nPAGES: 3\nRE: Shippers Responsibilities\nMy client is an industrial distributor, selling primarily through a catalog offering over\n400,000 items. They do not manufacture any of their products. Hazardous items include:\nsolvents, cleaners, adhesives, paints, acid filled batteries, fire extinguishers and lubricants.\nThe material packaging can range from aerosols to cans, buckets or bottles generally less\nthan or equal to 5 gallons. A 100% of their hazardous materials shipments are ground and\nare made via small package carriers. The following questions are my clients concerns in\nregards to their compliance with 173.21 Shipper's Responsibility.\nThey currently allow customers to pick up hazardous material from their Will-Call\n1) Will-Call shipments for pick-up by the customer.\nlabeled for transportation. However, they will not release orders to any commercial\nDepartment. Although the material is most often ORM-D, it is not packaged, marked or\ncouriers, and require all Will-Call customers to sign a waiver indicating that they are not a\naround the liability if the person picking up the material subsequently hands the material\ncourier and will not place the material \"in commerce\". Their concern continues to center\nto an air carrier.\nThe following is wording of the waiver:\nmaterial by the Department of Transportation, but which are\nThis order contains items which may be classified us hazardous\nnot packed for any mode of transportation.\ncourier / carrier and accepts responsibility for properly packing,\nThe undersigned hereby acknowledges that they are not a\nmarking and labeling this material.\n\n<<<PAGE 4>>>\n\n2) Hazard shipments to a customer whose name or location suggests the material\nmay ship via air:\nThey are concerned a customer like United Airlines, who they know have significant\nground maintenance facilities, may also be buying the material to ship by air elsewhere in\nesponsibility ends where and when the freight bill is signed. However, they wonder i\neir system. A previous opinion on this question indicated that their regulator\nthese would pass the \"did know\", or \"could we have known\" test which would still make\nthem responsible.. Is this a correct assumption?\nThey ship HAZMAT to Puerto Rico via a domestic freight carrier that has ensured us that\niability in the event the carrier chooses on their own to place the material on aircraft. I\nle material Will Ship on an ocean vessel. They believe that this alone eliminates thei\nthis also a correct assumption?\n3) Hazard shipments to customers who might re-ship via air:\nThe State of Alaska is a customer that has sent a letter asking that hazards material be\nshipped to them.\nTheir letter stated that they would accept liability for forwarding\nmaterial within the state.\nThey also ship material to cruise lines, for example supply depots. In these cases they\n\"constructive knowledge\" tests that the material could ship air from the land side ship-to\ncurrently hesitate to ship hazardous material due to the \"know or could have known\" or\naddress to the final point where the material will actually be used.\nA third variation involves shipments to distributors that they know might re-ship to one of\ntheir customers. In some cases, their customer purchase order might indicate that the\nmaterial will ship beyond the distributor, while in other cases their knowledge of the\ndistributor leads them to believe that they turn the material around and re-ship.\nIn all these cases, my clients question if their responsibility ends when the customer takes\npossession of the material by signing the freight bill?\n4) Domestic Government Facilities:\nAll hazard materials are presently prevented from being shipped to domestic customers\nthat my client deems to be U.S. Government Facilities. They are concerned that a\naircraft. But they have had at least one instance of an irate call from a U.S. Army General\nshipment of hazard material to an air force base might be subsequently shipped via an\nindicating that once The U.S. Department of Defense takes possession of the material, my\nclient is no longer responsible. Is this statement true?\nThey likewise prevent shipments of hazard material to APO/FPO since they often do not\nknow the final destination of the material. The APO/FPO might be located in\n2\n\n<<<PAGE 5>>>\n\nWashington, DC, or New York City, and they may sometimes have an indication that the\nmaterial is heading to an overseas air force base, etc. They have asked some of these\nAPOs for something in writing limiting their liability but to no avail. Does their liability\nend when the APOs take possession of the material?\n5) Hazard shipments to forwarders with a domestic address.\nMy Client is currently not shipping any hazards material to any export customer, they\nnderstand the regulatory habilty when making shipments to export customers through\ncustomers that could subsequently ship by air. At one time my client used to secure\nrwarder. Their concern centers on the responsibility when shipping hazards material\nrelease letter on every order from the customer that they were aware that the shipmen\nwas hazardous and confirming that the shipment would not travel via air. Their question\nis would the use of this letter eliminate any citation which may occur if the customer\nsubsequently ship by air?\n6) HAZMAT returns from customers:\nMy client's concern is centered on their liability in the event that they instruct the\nproperly. Would this a correct assumption?\n7) Batteries:\nCurrently my client does not ship any batteries via air that they cannot ensure that the\nis if there is a subsequently ship by air and the packaging fails to protect the batteries\nsupplier packaging adequately protects the batteries from short-circuiting. Their question\nfrom short-circuiting, would they or the supplier be responsible?\n8) Gas Springs:\nsprings to be shipped as non-hazardous, as per 173.306(f)(4), if specific requirements\nThere is an exemption in the Hazardous Materials Regulations which would allow gas\nwere met by the manufacturer. My client has received letters from their suppliers\nindicating that those requirements have been met with their units.\nwould they be liable if the gas spring subsequently fails in an aircraft?\n3","truncated":false,"body_characters":9364}