{"operation":"document","citation":"09-0103","title":"Hapag-Lloyd (America), Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2010-06-25","effective_on":null,"summary":"09-0103 response to Hapag-Lloyd (America), Inc. concerning 172.204, 174.24.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0103.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0103.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-09-0103","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2009/090103.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department of Transportation 1200 New Jersey Ave, SE\nWashington, D.C. 20590\nPipeline and Hazardous Materials\nSafety Administration\nMr. Robert F. Ahlborn Hapag-Lloyd (America), Inc.\n399 Hose Lane\nPiscataway, NJ 08854\nJUN 2 5 2010\nRef. No. 09-0103\nDear Mr. Ahlborn:\nThis letter responds to your May 4, 2009 e-mail concerning carrier responsibilities under the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask\nwhether a previously issued letter of interpretation, dated January 24, 1995, and addressed to\nthe Vessel Operators Hazardous Materials Association, Inc., remains valid. The letter\nspecified each entity required to receive a shipper's certification under § 172.204 for\ntransportation by highway, rail and vessel under the HMR.\nThe answer is yes; our previous response remains valid on this issue. An initial highway or\nrail carrier is required to obtain a signed shipper certification as specified in § 177 .817(b) or\n§ 174.24(a), respectively, prior to accepting a hazardous material shipment, but is not required\nto provide any subsequent highway carrier or train crew with shipping documents containing\na shipper's certification.\nAs stated in our 1995 letter, a vessel operator may not transport a hazardous material\nshipment unless provided a signed shipper certification, as specified in § 176.27(a).\nTherefore, ifa hazardous material shipment is offered for transportation and transported by\nhighway, rail, and vessel, both the highway carrier and vessel operator must obtain shipping\ndocuments containing a signed shipper's certification. However, if a shipper offers a\nhazardous material shipment to a vessel operator for subsequent transportation by rail or\nhighway, only the vessel operator is required to receive the shipper's certification.\nAlso enclosed for your information is another response to APL Americas Region, Reference\nNumber 08-0301R, that addresses similar concerns. Please do not hesitate to contact this\noffice if you require additional assistance.\nSincerely,\nI\nHattie L. Mitchell\nChief, Regulatory Review and Reinvention\nOffice of Hazardous Materials Standards\n-~-\nEnclosure\n\n<<<PAGE 2>>>\n\nShipper's Certification Changes Effective May 4, 2009 ?ty-e,t& Page 1 of 1\nDrakeford. Carolyn <PHMSA> _\"_\"., .~~ ,_ ___ ~ji '104:\n~\nFrom: Mitchell, Hattie <PHMSA> Slll.gll\nSent: Monday, May 04, 2009 5:52 PM S 17~. 'l.1\nTo: Drakeford, Carolyn <PHMSA> -r::>\nSubject: FW: Hazardous Materials Regulatory Change Effective May 4,2009 81,'pp,nj rctpe r5\nAttachments: certification 1-24-95.pdf 0 q.- 0 103\nFrom: Ahlborn, Robert [mailto:Robert.Ahlborn@hlag.com]\nSent: Monday, May 04, 2009 5:29 PM\nTo: Mitchell, Hattie <PHMSA>\nCc: jack@vohma.com; lara@vohma.com; chris@vohma.com\nSubject: FW: Hazardous Materials Regulatory Change Effective May 4, 2009\nHattie,\nWe (ocean carriers) have been receiving allot of correspondence and confusion generated from PHMSA's notice\nfor shipper's certification effective this month. This does not seem to be a new requirement but simply catching up\non what was left out when sect 171.12 was changed.\nAs discussed i have attached the RSPA interpretation we received in 1995 clarifying that if a shipper offers a\nhazmat Shipment to a vessel operator for subsequent transportation by rail and highway, only the vessel operator\nis required to receive the shipper's certification.\nDue to this interpretation the documentation for intermodal shipments arranged by vessel operators for\nsubsequent rail and/or truck moves have not contained the shipper's certification for some 14 years or more now.\nWe will continue to provide a copy of the attached to rail and truck carriers who request the certification, however\ndue to the 'old' date VOHMA would like to request PHMSA to reissue the interpretation so as to 'refresh' the date.\nThanks for your attention\nBest Regards\nBob\nRobert F. Ahlborn\nHapag-Lloyd (America) Inc\n399 Hose Lane\nPiscataway, NJ 08854\n732-885-3728\n5/4/2009\n\n<<<PAGE 3>>>\n\n1200 New Jersey Ave.. SE\nUS. Department Washington, DC 20590\nof Transportation\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. 08-0301R\nDear Mr. Faulkrrer:\nThis letter replaces our February 10, 2009 response to your December 5, 2008 e-mail in which\nyou raised several questions regarding the tenn \"initial carrier\" and a vessel operator's\nresponsibilities under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180).\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:\nQ 1. 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 flISt 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 CPR 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 bf 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 4>>>\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 certificati<?n on the shipping paper? The vessel\noperator would indicate on the original shipping paper, prepared in accordance with\nthe IMOO Code, \"shipper's certification on file\" and retain a copy of the\ndocumentation for one year as required by § 172.201(e).\nA5. 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(t)(4),\n172.201(e) and 176.24(b). but is not required to,fumish 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 infonnation provided in the original certification prepared by the shipper?\n\n<<<PAGE 5>>>\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 § 17t.2(e) and (0), or a person who knowingly or willfully provides incorrect\ninformation, is in violation of the HMR.\nI trust this satisfies your inquiry. Please accept my apology for any inconvenience caused by\nthis revision of our original response.\nSincerely,\n~~1¥~~,·()1j\nEdward T. Mazzullo ~o\nDirector, Office of Hazardous Materials Standards","truncated":false,"body_characters":9387}