{"operation":"document","citation":"08-0301R","title":"APL Americas Region — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2009-12-11","effective_on":null,"summary":"08-0301R response to APL Americas Region concerning 171.12, 172.204.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-08-0301r.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-08-0301r.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-08-0301r","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2008/080301R.pdf","body":"<<<PAGE 1>>>\n\n1200 New Jersey Ave., SE\nu.s. Department Washington, DC 20590\nofTransportation\nPipeline and Hazardous Materials\nSafety Administration\nDEC 1 1 2009\nMr. Calvin Faulkner\nD&H Specialist\nAPL Americas Region\n1111 Broadway\nOakland, CA 94607-5500\nRef. No. OS-0301R\nDear Mr. Faulkner:\nThis letter replaces our February 10, 2009 response to your December 5, 200S e-mail in which\nyou raised several questions regarding the term \"initial carrier\" and a vessel operator's\nresponsibilities under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-1S0).\nPlease note that the answers to questions Ql, Q3 and Q5 are revised in response to questions\nthat have arisen and our further review of this issue. Our answers to your questions are\nrevised to read as follows:\nQ1. Under § 171.22(f)(2). is the vessel operator considered the \"initial U.S. carrier\" for\nthe purpose of maintaining the shipper's certification required by § 172.204 or is the\nterm \"initial U.S. carrier\" used to describe the first carrier to transport a hazardous\nmaterial shipment once importation occurs and it is within United States jurisdiction?\nAI. The term \"initial U.S. carrier\" is not defined in the HMR. As used in\n§ 171.22(f)(2), it refers to the first carrier to transport a hazardous material shipment\nwithin the United States. This role is met when a vessel enters the navigable waters of\nthe United States as defined in 33 CFR 2.36. A vessel operator is required to receive a\nshipper's certification in accordance with § 176.27 for a hazardous material shipment,\nunless the material is excepted from the shipping paper requirements under the HMR.\nQ2. What is the obligation of a vessel operator if a hazardous material shipment arrives at\na United States port without a prepared shipper's certification as required by\n§ 172.204?\nA2. Unless a hazardous material is excepted from the shipping paper requirements under\nthe HMR, under §§ 176.24 and 176.27, a person (vessel operator) may not transport a\nhazardous material by vessel unless that person has received a shipping paper prepared\nin accordance with Part 172 of the HMR, including the shipper's certification\nprescribed in § 172.204. Thus, a vessel operator would be in violation of the HMR\nfor accepting such a shipment without a shipper's certification. Additionally, the\nshipment could not be forwarded or offered for transportation and transported in\ncommerce until such documentation was prepared.\n\n<<<PAGE 2>>>\n\nQ3. If a vessel operator releases a container that contains a hazardous material shipment to\na carrier and the accompanying shipping papers do not have a shipper's certification,\nis it a violation of the HMR?\nA3. The answer is no. Because the vessel operator is the initial U.S. carrier, it is not\nrequired to provide a shipper's certification on the accompanying shipping papers,\nprepared in accordance with Part 172 of the HMR, to subsequent highway or rail\ncarriers for onward transportation.\nQ4. Under § 177 .817(b), what is the obligation of a vessel operator to provide a prepared\nshipper's certification to a highway or rail carrier prior to the release of a\ncontainerized hazardous material shipment to the highway or rail carrier?\nA4. The answer to your question is the same as the answer in A3 above.\nQ5. Is it permissible for a vessel operator to transfer a hazardous material shipment to the\ninitial U.S. carrier without a shipper's certification on the shipping paper? The vessel\noperator would indicate on the original shipping paper, prepared in accordance with\nthe IMDG Code, \"shipper's certification on file\" and retain a copy of the\ndocumentation for one year as required by § 172.201(e).\nAS. As stated in response AI, in your scenario the vessel carrier is the initial U.S. carrier.\nTherefore, if a vessel carrier accepts a hazardous material shipment from a shipper and\ntransfers the shipment to a highway or rail carrier upon entering the United Sates, only\nthe vessel carrier is required to receive a shipper's certification. The vessel operator\nmust retain the shipping papers with a certification as required by §§ 171.22(f)(4),\n172.20l(e) and 176.24(b), but is not required to· furnish the shipper's certification to\nany connecting intermodal carrier for subsequent highway or rail transportation.\nHazardous material shipments imported into the United States by vessel that are\ntransferred to a highway or rail carrier must be in conformance with the applicable\nrequirements in §§ 171.22,171.23 and 171.25, including those in § 171.22(c).\nQ6. Is it permissible for a vessel operator to issue a shipper's certification based solely on\nthe information provided in the original certification prepared by the shipper?\n\n<<<PAGE 3>>>\n\nA6. The answer is yes. A carrier may rely on the original shipper's certification unless the\ncarrier knows or, a reasonable person, acting in the circumstances and exercising\nreasonable care, would have knowledge that the certification provided by the offeror\n(shipper) is incorrect. However, a carrier who knowingly uses incorrect information\n(see § 171.2(e) and (f), or a person who knowingly or willfully provides incorrect\ninformation, is in violation ofthe HMR.\nI trust this satisfies your inquiry. Please accept my apology for any inconvenience caused by\nthis revision ofour original response.\nSincerely,\n£!::!:L11~\nDirector. Office ofHazardous Materials Standards\n\n<<<PAGE 4>>>\n\n'.\"I._~' LV1 \\\"l.:Ul11CatlOn 6fe Vel1s Page lof2\n~ J 1/. 12~\n17:;'· 204 . ..\n.......91~pper:.5 c,er+,'f,cdt!) n\no~ .. 0301\nDrakeford, Carolyn <PHMSA>\nFrom: INFOCNTR <PHMSA> Sent: Friday, December 05, 2008 11 :39 AM\nTo: Drakeford. Carolyn <PHMSA>\nSubject: FW: Request for clarification\nFrom: HAZMATPALC [mailto:HAZMATPAlC@APL.COM]\nSent: Thursday, December 04, 20084:57 PM\nTo: PHMSA HM InfoCenter\nSubject: Request for dariflcatlon\nPlease clarify and or provide an interpretation to the following questions:\n1) Ref 49CFR, Part 171.22(f)(2), what is the impact on vessel operators transporting containerized cargo into the\nUnited States from abroad?\n• Would we be considered the initial U.S. Carrier, since the hazmat would be physically under our control\nand on our vessel attlrne of entering U.S. waters and U.S. ports, or\n• Is the initial U.S. Carrier minology reserved for the rail and/or trucking companies taking possession of\nthe container at the port?\n• What is our obligation if a contain arrives at a U.S. port without a shippers certification? Are we obligated\nto retain the container at the port and deny its delivery to the consignee, pending receipt of a shippers\ncertification from the shipper at their overseas location?\n• If a container is released to the carrier without a shippers certification, does this place us in violation of 49\nCFR?\n2) Ref49CFR. 177.817(b).\n• Prior to release of containerized hazmat cargo to the highway/rail carrier, are vessel operators required to\nprovide a shipper certification to the driver and or engineer on the shipping papers?\n• Can a statement be added to the shipping papers indicating that a \"shippers certification\" is on file, (when\nthe original hazardous declaration was prepared per the International Maritime Dangerous Goods (lMDG)\ncode), which we maintain on file for one year?\n• If we prepare a shippers certification, based upon the shippers certification (provided by the overseas\nshipper) and it turns out that the hazmat cargo was not actually packaged, marked, labeled, etc per 49CFR\nor tMDG, are we subject to violation of 49CFR for signing a false certification? This issue has us very\nconcerned since we would have based our certification solely on the shippers initial certification.\n• If a hazardous cargo container is released to the rail or highway carrier without the shippers certification, is\nthe vessel operator in violation of 49CFR?\nThanking you in advance for your understanding and cooperation in determining our legal responsibilities to the\nDepartment of Transportation (DOT).\nBest regards,\nCalvin Faulkner\nD&H Specialist\n\n<<<PAGE 5>>>\n\nRequest for clarification Page 20f2\nHazmatpalc-Hazardous Materials Compliance\nAPL Americas Region\nCW03, United States Army, Retired\n510-272-8285\nfax, 510-272-8615\n12110/2008","truncated":false,"body_characters":8193}