{"operation":"document","citation":"11-0260","title":"W.E. Train Consulting — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2012-02-21","effective_on":null,"summary":"11-0260 response to W.E. Train Consulting concerning 171.2, 172.204, 172.602, 172.604, 173.22.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0260.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0260.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0260","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2011/110260.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety Administration\n1200 New Jersey Ave\" S,E\nWashington, DC 20590\nFEB 2 1 2012\nMr. Gene Sanders\nDGSA,CDGT\nManager, W.E. Train Consulting\n8710 W. Hillsborough Ave. #112\nTampa, FL 33615\nRef. No. 11-0260\nDear Mr. Sanders:\nThis responds to your e-mail regarding clarification of the definition of \"offeror\" as it\napplies to \"carrier\" functions under the Hazardous Materials Regulations (HMR; 49 CFR\nParts 171-180). Specifically, you ask if your understanding is correct that a \"carrier\" may\nalso be an \"offeror.\" You provided the following examples and questions:\nQI. Example A: A shipper brings a limited quantity package to a carrier for surface\nshipment (not via air). The carrier notices the outer carton is flimsy, and has a\ncrushed comer. If the carrier has been properly trained in packaging limited\nquantity shipments, and has a strong outer packaging, may that carrier (regardless\nof whether a fee is charged or not) re-pack the limited quantity material in the\npresence of the shipper, prior to acceptance? If the carrier has been properly\ntrained in marking, may that carrier apply the limited quantity mark to the repacked\nmaterial?\nAI. The answer is yes. A person offering a hazardous material, including a residue, for\ntransportation in commerce is responsible for performing the functions of an\nofferor in compliance with all of the applicable regulations (see §§ 17I.2(a) and\n173.22). Based on the scenario provided above, if at the shipper's direction the\ncarrier takes responsibility for performing functions of the offeror, such as marking\nand re-packing a limited quantity in a strong outer packaging, the \"carrier\" is\nresponsible for performing those functions in compliance with the applicable\nregulations. However, it is our opinion that the relationship of the two parties\nshould be clarified in writing (e.g., a contract or exchange of letters) in order to\nensure that each is aware of its responsibilities.\nQ2. Example B: A shipper brings a marked and labeled package to a carrier, but leaves\nthe emergency response phone number off the shipping papers because the shipper\ndoesn't have the ability to meet the requirements regarding answering calls 2417,\nand doesn't have a contract with any other person to do so. When the shipper\n\n<<<PAGE 2>>>\n\nexplains the situation to the carrier, the carrier realizes that the hazardous materials\nis a commonly shipped commodity, sometimes shipped by the carrier themselves,\nand that the carrier does have a contract with an emergency response company who\nis already properly prepared to meet the regulatory requirements. Is the carrier\nalready properly trained because of their own shipments allowed to become a\nsecond offeror of the shipment, and prepare a new set of shipping papers, compliant\nin every respect including the emergency response information? Ifso, may the\ncarrier, acting upon the information provided by the shipper and her/his marked and\nlabeled package, reasonably believe the classification and packing have been\nperformed compliantly, and thus sign the certification on those newly printed\nshipping papers?\nA2. Generally, an offeror of the hazardous material must sign a certification statement\non the shipping paper, as required by §172.204(a). As stated in the enclosed formal\ninterpretation published in the Federal Register on June 4, 1988 (63 FR 30411), a\ncarrier violates the HMR when the carrier accepts or transports a hazardous\nmaterial with actual or constructive knowledge that a package contains a hazardous\nmaterial which has not been prepared in accordance with the applicable\nrequirements of the HMR. The formal interpretation also clarifies carrier\nresponsibility and the issue of \"knowingly and willfully\" violating the HMR. A\ncarrier may not accept or transport, including continuing to transport, a package\nwhich is not in compliance with the HMR. As in answer \"AI,\" a person, such as a\ncarrier, accepting responsibility for performing offeror functions must perform\nthose functions (e.g., preparing and certifying shipping papers) in compliance with\nthe applicable regulations.\nA person who offers a hazardous material for transportation must provide\nemergency response information and an emergency response telephone number for\nuse in the event of an emergency involving the hazardous material. The telephone\nnumber must be the number of the offeror or the number of an agency or\norganization capable of, and accepting responsibility for, providing detailed\ninformation about the hazardous material. Another entity may use your emergency\nresponse telephone number by prior arrangement with you and the third-party\nprovider. The emergency response provider may require evidence, such as your\ncompany name or registration number, indicating that your company contracted for\nthe emergency response services. An indication of this contractual relationship on\nthe shipping paper will promote linkage between the provider and the person\narranging to use the provider's service, ensuring compliance with §172.604.\n\n<<<PAGE 3>>>\n\nAccordingly, a person who arranges with an organization to provide emergency\nresponse services required by the HMR should ensure that the shipping papers that\naccompany the shipment include the information necessary to enable the provider\nto identify the person who has contracted for the services (see §§172.602 and\n172.604).\nI hope this information is helpfuL Ifwe can be of further assistance, please contact us.\nS~Y's1l--\nBen Supko\nActing Chief, Regulations Development\nOffice of Hazardous Materials Standards\nEnclosure\n\n<<<PAGE 4>>>\n\nFederal Register/Vol. 63. No. 107/Thursday. June 4, 199B/Rules and Regulations 30411\nthe criteria fpr a significant regulatory\naction under Executive Order 12866.\nThus, it was not subject to OMB review.\nRegulatory Flexibility Act\nWe certify that this regulation will not\nhave a significant economic impact on\na substantial number of small entities.\nTherefore. a regulatory flexibility\nanalysis as provided in the Regulatory\nFlexibility Act, as amended, is not\nrequired.\nPaperwork Reduction Act\nThis regulation imposes no reporting!\nrecordkeeping requirements\nnecessitating clearance by OMB.\n(Catalog of Federal Domestic Assistance\nProgram Nos. 96.001, Social SecurityDisability\nInsurance; 96.002. Social SecurityRetirement\nInsurance; 96.004. Social\nSecurity-Survivors Insurance; 96.006.\nSupplemental Security Income)\nList of Subjects in 20 CFR Part 404\nAdministrative practice and\nprocedure, Blind, Disability benefits,\nOld-Age, Survivors and Disability\nInsurance, Reporting and recordkeeping\nreqUirements, Social security.\nDated: May 27, 1998.\nKenneth S. Apfel.\nCommissioner ofSocial Security.\nFor the reasons set forth in the\npreamble, part 404. subpart P, chapter\nIII of title 20 of the Code of Federal\nRegulations is amended as set forth\nbelow.\nPART 404-FEDERAL OLD-AGE,\nSURVIVORS AND DISABILITY\nINSURANCE (1950-)\nSubpart P-[Amended]\n1. The authority citation for subpart P\nof part 404 continues to read as follows:\nAuthority: Secs. 202, 20S(a), (b), and (d)(h).\n216(i), 221 (a) and (i), 222(c). 223, 22S,\nand 702(a) (S) of the Social Security Act (42\nU.s.C. 402, 40S(a). (b), and (d)-(h), 416(i).\n421(a) and (i), 422(c), 423, 42S, and\n902(a)(S»; sec. 211(bl. Pub. L. 104-193. 110\nStat. 21OS, 2189.\n2. Appendix 1 to subpart P of part 404\nis amended by revising items 1, 3, 11,\n12, and 15 of the introductory text\nbefore Part A to read as follows:\nAppendix 1 to Subpart P-Listing of\nImpairments\n* * * * *\n1. Growth Impairment (100.00): July 1,\n1999.\n* * * * *\n3. Special Senses and Speech (2.00 and\n102.00): July 1, 1999.\n* * * * *\n11. Multiple Body Systems (110.00): July 1,\n1999.\n12. Neurological (11.00 and 111.00): July I,\n1999.\n* * * * *\nIS. Immune System (14.00 and 114.00):\nJuly 1. 1999.\n* * * * *\n[FR Doc. 98-14S99 Filed 6-3-98; 8:45 aml\nBILLING CODE 4190-29-P\nDEPARTMENT OF TRANSPORTATION\nResearch and Special Programs\nAdministration\n49 CFR Parts 107, 171, 172, 173, 174,\n175,176,177\n[Notice No. 98-6]\nHazardous Materials: Formal\nInterpretation of Regulations\nAGENCY: Research and Special Programs\nAdministration (RSPA), DOT.\nACTION: Formal interpretation of\nregulations.\nSUMMARY: This document publishes a\nformal interpretation of the Hazardous\nMaterials Regulations (HMR) concerning\nthe responsibilities of a carrier when\naccepting hazardous materials for\ntransportation in commerce. This\ninterpretation is being published in\norder to facilitate better public\nunderstanding and awareness of the\nHMR.\nEFFECTIVE DATE: June 4, 1998.\nFOR FURTHER INFORMATION CONTACT:\nFrazer C. Hilder, Office of the Chief\nCounsel, Research and Special Programs\nAdministration, U.S. Department of\nTransportation, 400 Seventh Street, SW,\nWashington, DC 20590-00001;\ntelephone 202-366-4400.\nSUPPLEMENTARY INFORMATION: As part of\nits implementation of the Federal\nhazardous material transportation law.\n49 U.S.C. 5101 et seq., RSPA issues the\nHazardous Materials Regulations\n(HMR), 49 CFR parts 171-180. From\ntime to time, RSPA's Chief Counsel\nissues formal interpretations of the\nHMR. These interpretations generally\ninvolve multimodal issues and are\ncoordinated with the other DOT\nagenCies which, together with RSPA,\nenforce the HMR: Federal Aviation\nAdministration, Federal Highway\nAdministration, Federal Railroad\nAdministration, and United States Coast\nGuard. This document publishes a Chief\nCounsel's interpretation concerning the\nresponsibilities of a carrier when\naccepting hazardous materials for\ntransportation in commerce. This\ninterpretation addresses issues raised in\na letter by Mr. E.A. Altemos, of HMT\nAssociates, and is consistent with an\nAugust 19, 1997 written response to Mr.\nAItemos by RS~A's ASSOCiate\nAdministrator for Hazardous Materials\nSafety.\nIn addition to these infrequent formal\ninterpretations by RSPA's Chief\nCounsel, RSPA's Office of Hazardous\nMaterials Standards provides\ninformation and informal clarifications\nof the HMR on an ongoing basis,\nthrough (I) a telephonic information\ncenter (1-800-467-4922) to answer oral\nquestions and (2) informal written\ninterpretations or clarifications in\nresponse to written inquiries. RSPA's\nformal interpretations and informal\nletter clarifications (and additional\ninformation concerning the HMR) are\nalso available through the Hazmat\nSafety Homepage at ''http://\nhazmat.dot.gov.\" In addition, some of\nRSPA's interpretations and\nclarifications may be reproduced or\nsummarized in selected trade\npublications.\nFurther information concerning the\navailability of informal guidance and\ninterpretations of the HMR is set forth\nin 49 CFR 107.14. RSPA believes that\npublication of its interpretations should\npromote a better understanding of the\nHMR and improve compliance with the\nHMR.\nIssued in Washington, DC, on May 28,\n1998.\nJudith S. Kaleta,\nChief Counsel.\n[Int. No. 98-11\nBackground\nMr. E.A. Altemos, HMT ASSOCiates,\nrequested clarification of requirements in the\nHMR concerning an air carrier's acceptance\nof packages containing hazardous materials.\nThis inquiry concerned only the carrier's\nresponsibilities relating to hazardous\nmaterials offered by another person, and not\na carrier's transportation of its own materials\nor products. (For information on an air\ncarrier's transportation of its own company\nmaterials, or ''COMAT,'' see \"COMAT\nFACTS\" in RSPA's January 1998 Safety\nAlert, available on the Hazmat Safety\nHomepage.)\nAlthough Mr. Altemos's question was\nposed in the context of air transportation, the\nHMR requirements discussed in RSPA's\ninterpretation apply to carriers by all modes\nof transportation.\nInterpretation\nBasic requirements in the HMR set forth in\n49 eFR 171.2(a) and (b), and applicable to\ncarriers in all modes of transportation, are\nthat no person may\naccept a hazardous material for\ntransportation in commerce unless * * * the\nhazardous material is properly classed,\ndescribed, packaged, marked. labeled, and in\ncondition for shipment as required or\n\n<<<PAGE 5>>>\n\n30412 Federal Register/Vol. 63. No. 107/Thursday, June 4, 199B/Rules and Regulations\nauthorized by applicable requirements of [the\nHMR], or an exemption. approval. or\nregistration issued under [the HMRI' * *\n[orl\ntransport a hazardous material in commerce\nunless * * * the hazardous material is\nhandled and transported in accordance with\napplicable requirements of [the HMRl. or an\nexemption. approval, or registration issued\nunder [the HMRJ' * *\nA carrier's acceptance and transportation\nof hazardous materials can involve several\ndifferent situations. including the following\ntwo ends of the spectrum:\n1. the shipment is declared by the offeror.\nin one manner or another. to contain\nhazardous materials and complies (in whole\nor in part) with requirements in the HMR; or\n2. whether intentionally or\nunintentionally. the shipment is not declared\nby the offeror to contain hazardous materials.\nand no attempt has been made to comply\nwith the HMR (the \"undeclared\" or \"hidden\"\nshipment).\nThe Secretary of Transportation has\ndelegated to agencies within the Department\n(Federal Aviation Administration. Federal\nHighway Administration. Federal Railroad\nAdministration. United States Coast Guard.\nand Research and Special Programs\nAdministration). the authority in 49 U.S.C.\n5123 to assess a civil penalty against any\nperson who \"knowingly violates\" any\nrequirement in the HMR, including the\nprovisions in § 171.2 (a) and (b) quoted\nabove. Section 5123(a) provides that a person\n\"acts knowingly\" when\n(A) the person has actual knowledge of the\nfacts giving rise to the violation; or\n(B) a reasonable person acting in the\ncircumstances and exercising reasonable care\nwould have that knowledge.\nAccordingly. a carrier knowingly violates\nthe HMR when the carrier accepts or\ntransports a hazardous material with actual\nor constructive knowledge that a package\ncontains a hazardous material which has not\nbeen packaged. marked. labeled. and\ndescribed on a shipping paper as required by\nthe HMR. This means that a carrier may not\nignore readily apparent facts that indicate\nthat either (l) a shipment declared to contain\na hazardous material is not properly\npackaged. marked. labeled. placarded. or\ndescribed on a shipping paper. or (2) a\nshipment actually contains a hazardous\nmaterial governed by the HMR despite the\nfact that it is not marked. labeled. placarded.\nor described on a shipping paper as\ncontaining a hazardous material.\nThe Department's October 4. 1977\ninterpretation concerning 49 CFR 175.30\n(reproduced below) relates to the first\nsituation in the above paragraph. i.e., when\nan air carrier receives a shipment\naccompanied by a shipping paper containing\na shipper's certification that hazardous\nmaterials within the shipment have been\nclassed. packaged. marked. labeled and\naccurately described as required, See 49 CFR\n172.204. Whenever. in the course of\nexamining the shipping paper and\nperforming the required visual inspection of\nthe package. an air carrier has reason to know\nof discrepancies. the carrier may not simply\nrely on the shipper's certification.\nIn the case of an undeclared or hidden\nshipment. all relevant facts must be\nconsidered to determine whether or not a\nreasonable person acting in the\ncircumstances and exercising reasonable care\nwould realize the presence of hazardous\nmaterials. In an enforcement proceeding. this\nis always a question of fact. to be determined\nby the fact-finder. Because innumerable fact\npatterns may exist. it is not practicable to set\nforth a list of specific criteria to govern\nwhether or not the carrier has sufficient\nconstructive knowledge of the presence of\nhazardous materials within an undeclared or\nhidden shipment to find a knowing violation\nof the HMR.\nInformation concerning the contents of\nsuspicious packages must be pursued to\ndetermine whether hazardous materials have\nbeen improperly offered. A carrier's\nemployees who accept packages for\ntransportation must be trained to recognize a\n\"suspicious package.\" as part oftheir\nfunction-specific training as speCified in 49\nCFR 172.704(a)(2). because the legal standard\nremains the knowledge that a reasonable\nperson acting in the circumstances and\nexercising reasonable care would have,\nBecause this standard applies to all modes of\ntransportation. a single training program and\na uniform screening process can be\ndeveloped for all of a company's employees\ninvolved in surface or air transportation.\nAt the same time. an offeror who fails to\nproperly declare (and prepare) a shipment of\nhazardous materials bears the primary\nresponsibility for a hidden shipment.\nWhenever hazardous materials have not been\nshipped in compliance with the HMR. DOT\ngenerally will attempt to identify and bring\nan enforcement proceeding against the\nperson who first caused the transportation of\na noncomplying shipment. The procedures\napplicable to DOT civil penalty enforcement\ncases procedures are set forth in 14 CFR\n13.16 (FAA); 33 CFR part 1. subpart 1.07\n(USCG); 49 CFR part 109. subpart B (FRA);\n49 CFR part 107. subpart D (RSPA); and 49\nCFR part 386 (FHWA).\nTo the extent that any carrier. regardless of\nthe mode of transportation. is truly\n\"innocent\" in accepting an undeclared or\nhidden shipment of hazardous materials. it\nlacks the knowledge required for assessment\nof a Civil penalty. However. when a carrier\nacts \"knowingly.\" as defined in 49 U.S.c.\n5123(a). it must be considered subject to civil\npenalties. RSPA rejects any suggestion that a\ncarrier would be deemed to have\n\"knowingly\" accepted a hazardous material\nfor transportation. and be subject to civil\npenalties under 49 U.s.c. 5123. only when\nthe material is described as a hazardous\nmaterial on a shipping paper or other\ncommercial documentation. or the package is\nmarked or labeled in a manner as prescribed\nby the HMR That approach would\nimproperly limit a carrier's responsibility to\nsituations involving a \"declared\" shipment.\nDEPARTMENT OF TRANSPORTATION\nOffice of the Secretary\nOctober 4. 1977.\nSubj: Air Carrier's Responsibility for\nInspection of Hazardous Materials\nPackages.\nFrom: Assistant General Counsel for\nMaterials Transportation Law.\nTo: Director. Transportation Safety Institute.\nTES-15\nThis is in response to your request of\nAugust 25. 1977. for our opinion as to\nwhether an air carrier has a specific\nregulatory obligation to inspect hazardous\nmaterials packages prior to acceptance for air\ntransportation to insure the shipper's\ncompliance with specific regulatory\nrequirements of parts 173 and 178. With the\nquestion. you have supplied your analysis\nand conclusion that except for the physical\nintegrity inspection provided for in\n§ I 75.30(b) there is no duty on the air carrier\nto inspect hazardous materials packages prior\nto acceptance for transportation in order to\ndetermine compliance with the requirements\nof parts 173 and 178. Thus. it is your opinion\nthat the air carrier may rely on the shipper's\ncertification accompanying the shipment.\nSection 175.30 prescribes the requirements\nthat must be met before an air carrier accepts\na shipment of hazardous materials for\ntransportation. In achieving compliance with\nthese requirements. the air carrier must.\nunder paragraph (a). examine the shipment\nagainst the information supplied on the\nshipping paper. and must, under paragraph\n(b). make a visual inspection for leaks and\ndamaged packaging. Consequently. I agree\nwith your analysis and conclusion that the\nregulations permit the air carrier to rely on\nthe information supplied on the shipping\npaper. unless. in complying with paragraphs\n(a) and (b). he has reason to know that there\nare discrepancies.\nIFR Doc. 98-14561 Filed 6-3-98; 8:45 am1\nBILUNG CODE 4910-6O-P\nDEPARTMENT OF COMMERCE\nNational Oceanic and Atmospheric\nAdministration\n50 CFR Part 679\n[Docket No. 961107312-7021-02; 1.0.\n0520988]\nFisheries of the Exclusive Economic\nZone Off Alaska; Bycatch Rate\nStandards for the Second Half of 1998\nAGENCY: National Marine Fisheries\nService (NMFS). National Oceanic and\nAtmospheric Administration (NOAA).\nCommerce.\nACTION: Pacific halibut and red king crab\nbycatch rate standards; request for\ncomments.\nSUMMARY: NMFS announces Pacific\nhalibut and red king crab bycatch rate\nstandards for the second half of 1998,\nPublication of these bycatch rate\nstandards is required under regulations\n\n<<<PAGE 6>>>\n\n£nqrum\n~. l4(· ~ ,\nDrakeford, Carolyn (PHMSA) q,fJOVh$\n~.\nFrom: Betts, Charles (PHMSA) l ( ~02.lo0\nSent: Monday, October 17,2011 7:54 PM\nTo: 'Gene@WEtrainConsulting.com'; Billings, Delmer (PHMSA); Drakeford, Carolyn (PHMSA)\nCc: Foster, Glenn (PHMSA); INFOCNTR (PHMSA)\nSubject: Re: Request for Interpretation\nWe have received your request. It will be logged into our tracking system and assigned to a specialist for proper\nGene-\nhandling.\nRegards,\nCharles\nFrom: Gene Sanders of WE Train Consulting Imailto:Gene@WEtrainConsulting.com]\nSent: Monday, October 17, 2011 07:43 PM\nTo: Betts, Charles (PHMSA)\nCc: Foster, Glenn (PHMSA); INFOCNTR (PHMSA)\nSubject: Request for Interpretation\nDear Charles Betts,\n49CFR 171.2{b) makes it clear that there may be more than one offeror of a hazardous material. But in\n171.8, under the definition of Of/eror, (1)(ii) clearly makes the offeror distinct from the carrier, and (2)\ndefines when a carrier is NOT an offeror. I believe that in some situations, a carrier may also be an offeror,\nand request that you confirm or contradict my belief as it applies to the following examples. Thank you.\nExample A: A shipper brings a Limited Quantity package to a carrier for surface shipment (not via air). The\ncarrier notices the outer carton is flimsy, and has a crushed corner. If the carrier has been properly trained\nin packing limited quantity shipments, and has a strong outer packaging, may that carrier (regardless of\nwhether a fee is charged or not) re-pack the limited quantity material in the presenc~ of the shipper, prior\nto acceptance? If the carrier has been properly trained in marking, may that carrier apply the limited\nquantity mark to the re-packed material?\nExample B: A shipper brings a marked and labeled package to a carrier, but leaves the emergency response\nphone number off of the shipping papers, because the shipper doesn't have the ability to meet the\nrequirements regarding answering calls 24/7, and doesn't have a contract with any other person to do so.\nWhen the shipper explains the situation to the carrier, the carrier realizes that the hazardous material is a\ncommonly shipped commodity, sometimes shipped by the carrier themselves, and that the carrier does\nhave a contract with an emergency response company who is already properly prepared to meet the\nregulatory requirements. Is the carrier, already properly trained because of their own shipments, allowed\nto become a second offeror of the shipment, and prepare a new set of shipping papers, compliant in every\nrespect including the emergency response information? If so, may the carrier, acting upon the information\nprovided by the shipper and her/his marked and labeled package, reasonably believe the classification and\npacking have been performed compliantly, and thus sign the certification on those newly printed shipping\npapers?\n1\n\n<<<PAGE 7>>>\n\nIn other words, is there any regulatory restriction against a properly trained carrier performing some\nofferor functions?\nThank you for your assistance.\nCheers,\nGene Sanders, DGSA, CDGT\nManager, W.E. Train Consulting\n8710 W. Hillsborough Ave. #112\nTampa, Fl 33615\nGene@WEtrainConsulting.com\nTampa phone: (813) 855~3855\nmobile phone: (412) 779-5151\nwww.WEtrainConsulting.com\n2","truncated":false,"body_characters":23559}