{"operation":"document","citation":"06-0085","title":"The UPS Store — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2007-09-11","effective_on":null,"summary":"06-0085 response to The UPS Store concerning 171.2.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-06-0085.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-06-0085.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-06-0085","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2006/060085.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Ave, S.E.,\nRoom E26-326\nWashington, D.C. 20590-0001\nPhone: (202) 366-4400\nFax: (202) 366-7041\nOffice of\nChief Counsel\nHazardous Materials Safety\nLow Division\nSEP 2007\ni\nMs. Nancy Kasza-Scott Ref. No.: 06-0085\nOwner\nThe UPS Store\n4962 Hononegah Road\nRoscoe, Illinois 61073\nDear Ms. Kasza-Scott:\nThis responds to your April 24, 2006 letter regarding the applicability ofthe Hazardous Materials\nRegulations (HMR; 49 CFR Parts 171-180) to certain acceptance functions performed at your\nplace of business. Specifically, you ask about the circumstances under which a UPS Store could\nbe found to be in violation ofthe HMR for accepting undeclared shipments or non-compliant\npackages for transportation. I apologize for the delay in responding and any inconvenience it\nmay have caused.\nIt is our understanding that UPS Stores, which are owned and operated by independent\nfranchisees, do not accept hazardous materials shipments on behalf of UPS. The one exception\nto this policy is the acceptance of ORM-D materials offered for carriage by ground transportation\nat some UPS Store locations.\nFor a UPS Store that does not accept hazardous materials shipments, the HMR generally do not\napply to that store's operations. However, for purposes of the HMR, a UPS Store is considered\nto be an agent of UPS because it accepts packages for transportation on'behalf of UPS. The\nHMR permit a carrier or the carrier's agent to rely on information provided by the person\noffering a package for transportation unless the carrier or agent knows or a reasonable person,\nacting in the circumstances and exercising reasonable care, would have knowledge that the\ninformation provided is incorrect (see § 171.2(f)). Thus, a UPS Store could be found to be in\nviolation of the HMR if it accepts an undeclared hazardous materials shipment for transportation\nwhen it knows that the shipment contains a hazardous material, or a reasonable person, acting in\nthe circumstances and exercising reasonable care, would know that the shipment contains a\nhazardous material. Some possible indicators ofhazardous materials include a hazard label or\n\n<<<PAGE 2>>>\n\n2\ncaution statement on the package with no accompanying shipping documentation, or a notation\nsuch as \"flammable paint\" without proper shipping declarations or labels or markings. We\nstrongly recommend that UPS Store employees receive training in how to recognize a possible\nundeclared hazardous materials shipment.\nWe note that an offeror who fails to properly declare (and prepare) a shipment ofhazardous\nmaterials bears the primary responsibility for a hidden shipment. Indeed, whenever hazardous\nmaterials have not been shipped in accordance with the HMR, DOT generally will attempt to\nidentify and bring an enforcement proceeding against the person who first caused the\ntransportation of a non-complying shipment.\nUPS Store personnel accepting ORM-D materials offered for ground transportation on behalf of\nUPS must ensure that the shipment conforms to all applicable HMR requirements prior to\naccepting the shipment. Again, the UPS Store may rely on information provided by the person\noffering the package for transportation unless it knows, or a reasonable person acting in the\ncircumstances and exercising reasonable care, would have knowledge that the information\nprovided is incorrect. Employees ofthe UPS Store who accept packages must be trained in\naccordance with Subpart H of Part 172 of the HMR.\nYou should also be aware that the Federal Aviation Administration has issued regulations\ngoverning air carriers that do not accept or transport hazardous materials, and these regulations\nmay apply to some aspects of your operation. You may wish to contact the Director, Office of\nHazardous Materials, ADG-l, Federal Aviation Administration, 800 Independence Ave. SW,\nRoom 300 East, Washington, DC 20591,202-267-9864, for additional information.\noseph Solomey\nAssistant Chief Counsel\n\n<<<PAGE 3>>>\n\nStevens\n5171.1\nNancy Kasza-Scott\nApplicability\nOwner\nOf Coss\n4962 Hononegah Road\n815.623.5808 Tel\nRoscoe, IL 61073\nstore3915@theupsstore.com\n815.623.3388 Fax\nApril 24, 2006\nMr. Edward T Mazzullo\nDirector, Office of Hazardous Materials Standards\n4007* St. SW\nS.S. DOT/PHMSA (PHH-10)\nWashington, D.C. 20590-0001\nSir;\nWe are seeking a formal letter of determination from the DOT. The UPS Stores are\nin many different ways, to get an answer from our Franchisor, we have not been able to\nget a clear, consistent response.\nfor these packages until they are placed in their truck. These packages come to i: closec\nIrop-off point. They are direct customers of UPS. UPS does not assume responsibilit\nUnder what circumstances would a storeowner be fined, by the Department of\nTransportation, for violating Hazmat regulations?\nThe UPS Store:\n\n<<<PAGE 4>>>\n\nNancy Kasza-Scott\nOwner\nRoscoe, IL 61073\n4962 Hononegah Road\n815.623.5808 Tel\n815.623.3388 Fax\nstore3915@theupsstore.com\nPlease take the following into consideration:\n• We are NOT instructed to inspect the contents of packages, nor are we trained or\nIt is our understanding that hazmat shippers are required to attend training. If so,\ncompensated to perform this function.\ncan companies like UPS, Avon, etc., knowingly provide shipping labels to\nCan UPS legally require us to accept packages that we have no control over\nonsumers who they know have no understanding of hazmat procedures\nIf a UPS Store franchisee were fined by the DOT for unknowingly introducing a\nhazmat package into the system, would the sender (i.e., Avon...) and UPS also be\nfined?\nOne of our fellow storeowners had a fire damage his store. There is suspicion that the\ntire was started by a drop-off package. One can assume that this package would also\ncontain hazardous materials, since it was flammable. How would the Department of\nTransportation rule if this same package caught on fire in a UPS truck, plane or at a hub?\nThank you, in advance, for your assistance in this manner. A letter of determination will\nhelp us, as storeowners, develop policies and procedures to protect our business from\nunnecessary liability and to promote proper handling of all packages.\nIf you have questions regarding this request, please contact me at 815-623-5808.\nThank you.\nNancy Scott\nThe UPS Store:\n\n<<<PAGE 5>>>\n\nNancy Kasza-Scott\nOwner\nRoscoe, IL 61073\n4962 Hononegah Road\n815.623.3388 Fax\n815.623.5808 Tel\nstore3915@theupsstore.com\nMay 23.2006\nOffice Of Hazardous Materials Standards\nS.S. DOT/PHMSA (PHH-10)\nDirector Edward T Mazzullo\n400 7* St SW\nWashington, D.C. 20590-001\nSir;\nAs a small business owner, I am seeking clarification, in written form, for DOT regulations that\npackage and ship items for our customers and, in that capacity, are responsible for following\nrelate to acceptance of and shipping of packages as a retail shipping outlet. Obviously we\nre-paid packages, which are simply dropped off at our business for later pick-up by a carrier\nAZMAT guidelines. However, we are required, by contract with UPS, FedEx, etc to accep\nthey are to inspect packages.\ndetermination will allow us to go back to the carriers and effect changes in the contractual\nrequirements that put us at risk.\nstaff, attempting to answer questions. However, the carriers have not responded to our concerns,\nI do not mean to imply that your office has not been helpful. I have received phones call from\nand, as mentioned, are now trying to force us to open and inspect packages, with out benefit of\nI would appreciate acknowledgement of this letter and an approximate date a Letter of\nDetermination can be expected\nThank You,\nNancy Scott\nThe UPS Store™\n\n<<<PAGE 6>>>\n\nPlease take the following into consideration:\nWe are NOT instructed to inspect the contents of packages, nor are we trained or\nIt is our understanding that hazmat shippers are required to attend training. If so, can\ncompensated to perform this function.\ncompanies like UPS, Avon, etc., knowingly provide shipping labels to consumers who\nCan UPS legally require us to accept packages that we have no control over?\nthey know have no understanding of hazmat procedures.\nIf UPS Store franchise were fined by the Do fon. and ups anoetine a hazma\nackage into the system, would the sender (1.e., -\nOne of our fellow storeowners had a fire damage his store. There is suspicion that the fire was\nnaterials, since it was flammable. How would the Department of Transportation rule if this sam\ntarted by a drop-off package. One can assume that this package would also contain hazardou\npackage caught on fire in a UPS truck, plane or at a hub?\nas storeowners, develop policies and procedures to protect our business from unnecessary liability\nThank you, in advance, for your assistance in this manner. A letter of determination will help us,\nand to promote proper handling of all packages.\nIf you have questions regarding this request, please contact me at 815-623-5808.\nThank you.\nNancy Scott\n\n<<<PAGE 7>>>\n\nApril 24, 2006\nMr. Edward T Mazzullo\nS.S. DOT/PHMSA (PHH-10)\nDirector, Office of Hazardous Materials Standards\n400 7* St. SW\nWashington, D.C. 20590-0001\nSir;\noperated by independent franchisees. We believe that we are exposed to potential liability for\nWe are seeking a formal letter of determination from the DOT. The UPS Stores are owned and\nfines levied by the DOT for hazardous materials that we may unknowing be introducing into th\nshipping system. Although we have tried many times, in many different ways, to get an answer\nfrom our Franchisor, we have not been able to get a clear, consistent response.\nUnder what circumstances would a storeowner be fined, by the Department of Transportation, for\nviolating Hazmat regulations?","truncated":false,"body_characters":9748}