{"operation":"document","citation":"13-0035","title":"Con-Way Truckload — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2013-11-13","effective_on":null,"summary":"13-0035 response to Con-Way Truckload concerning 171.2, 177.800, 177.843.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0035.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0035.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-13-0035","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2013/130035.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nNOV 1 3 2013\nMr. JeffMesser\nSafety Analyst\nCon-Way Truckload\n4701 E. 32nd Street\nJoplin, MO 64803\nReference No. 13-0035\nDear Mr. Messer:\nThis is in response to your e-mail and subsequent emails and telephone conversations\nsupplying additional information pertaining to clarification of the Hazardous Materials\nRegulations (HMR; 49 CFR 171-180) applicable to a transporter relying on information\nconcerning hazardous material shipments, when those shipments are prepared for\ntransportation by the offeror. Specifically, you state that you are an over-the-road\ncommercial carrier that transports trailers loaded and pre-sealed by the offeror. You further\nstate that your drivers do not unseal the trailers and open them to inspect the loads. At\ntimes, your drivers have been subject to roadside inspections and required to open the\ntrailers. As a result, the drivers have been cited for not complying with the requirements of\n§ 177.834(a). You are requesting an interpretation to determine if you are correct in your\nunderstanding that the enforcement citation should go to the offeror.\nTo support your understanding, you cite § 171.2(f), pertaining to exercising reasonable care\nin the reliance on information provided by an offeror or prior carrier; § 171.8, pertaining to\nthe definitions for \"person who offers or offeror\" and \"pre-transportation function,\"\nincluding \"(12) loading, blocking, and bracing a hazardous materials package in a freight\ncontainer or transport vehicle;\" and§ 177.800(b), pertaining to a carrier's responsibility for\ncompliance with Part 177, \"Carriage by Highway,\" unless specifically provided that another\nperson shall perform a particular duty. Additionally, you state that under§ 173.30,\npertaining to the loading and unloading of transport vehicles, the responsibility falls on the\nperson loading and unloading the hazardous material to comply with§ 177.834, although\n§ 177.834 is a requirement under the Part 177, \"Carriage by Highway.\" Lastly, you state it\nis your belief that§ 177.801 and not§ 177.834 is the correct citation reference for a\nviolation.\nYour understanding of pre-transportation function responsibility is partially correct.\nAlthough responsibility for compliance with Part 177 of the HMR is inherently placed on\nthe motor carrier, pre-transportation and other regulated functions (e.g., loading, blocking,\nand bracing of a hazardous materials package into or onto a motor vehicle) can be performed\n\n<<<PAGE 2>>>\n\nby more than one party. Thus, an offeror and a motor carrier may both be held responsible\nfor non-compliance with applicable requirements of Part 177 of the HMR. However, in the\nscenario where trailers have Customs Seals or security seals (to prevent theft or\ncontamination), and the driver has no way to inspect the load, the onus for compliance could\nfall on the shipper/offeror.\nRegarding a motor carrier's responsibility, no person may transport a hazardous material in\ncommerce unless the hazardous material is transported in accordance with applicable\nrequirements of the HMR. In other words, as specified in§ 177.800, unless otherwise\nprovided, each carrier, including a connecting carrier, shall perform the duties specified and\ncomply with applicable requirements in Part 177, including, but not limited to, the general\npackage securement requirements specified in § 177.834. However, under§ 171.2(±), a\nmotor carrier who transports a hazardous material in commerce may rely on information\nprovided by the offeror of the hazardous material, unless the motor carrier knows or, a\nreasonable person, acting in the circumstances and exercising reasonable care, would have\nknowledge that the information provided by the offeror is incorrect. The degree of a motor\ncarrier's culpability is measured by whether the loading, blocking, or bracing violation could\nhave been avoided by exercising reasonable care. An example of exercising reasonable care\ncould be where the trailer was not sealed until after motor carrier personnel, or someone\nacting on its behalf, examined the trailer for proper cargo securement.\nRegarding an offeror's responsibility, any person who performs, attempts to perform, or,\nunder the circumstances involved, is contractually or otherwise responsible to perform, any\nof the regulated transportation functions subject to the HMR is legally responsible under the\nHMR for their proper performance. Thus, the degree of an offeror's culpability is also\nmeasured by whether the loading, blocking, or bracing violation could have been avoided by\nexercising reasonable care.\nI trust this information is helpful. Please contact this office should you have additional\nquestions.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nDrakeford, Carolyn (PHMSA)\nFrom: INFOCNTR (PHMSA)\nSent:\nTo:\nSubject: Monday, February 04, 2013 4:16PM\nDrakeford, Carolyn (PHMSA)\nFW: Formal Letter of Interpretation\nHi Carolyn,\nWe received the following r~quest for a formal letter of interpretation.\nThanks,\nVictoria\nFrom: Jeff Messer [mailto:me ser.·eff conwa ruckload.com]\nSent: Monday, February 04, 2 13 4:09PM\nTo:INFOCNTR(PHMSA) '\nSubject: Formal Letter of Interpretation\nFebruary 04, 2013\nU.S. DOT \\\nPHMSA Office of Hazardous M~terials Standards\nAttn: PHH-10\nEast Building\n1200 New Jersey Avenue, SE.\nWashington, DC 20590-0001\nTo Whom It May Concern:\nAs an over-the-road commercia'! hauler, we are often. asked t~ pick up trailers that have already been loaded and pre-\nsealed by the offeror. Our drivdrs do not unseal the. trailer and open it to inspect the load. There have been times that\nwe have been inspected by law ~nforcement and have· been required to 'open the trailer at that time. We have been cited\n'\\\nfor not complying with the requ,rements of Subpart B-Loading and Unloading 177.834(a). We are requesting an\ninterpretation to determine if Wf are correct in our assertion that the citation should go to the offeror based on the\nfollowing logic: I\ni\nI\n177.800{b) Responsibiltjty for compliance states that \"Unless this subchapter specifically provides that another\nperson shall perform a particular duty.\"\nI\nI\n171.2(!) states that \"Eac~ carrier who transports a hazardous material in commerce may rely on information\nprovided by the offeror ~f the hazardous material or a prior carrier, unless the carrier knows ... that the information\nprovided by the offeror $r prior carrier is incorrect\".\nII\n171.8 Person who offers pr offeror means (1) Any person who does either or both of the following:\n(i) Performs or is\\ responsible for performing any pre-transportation function required under this\nsubchapter for t~ansportation of the hazardous material in commerce.\n(ii) Tenders or mO,kes the hazardous material available to a carrier for transportation in commerce\nI\n1\n\n<<<PAGE 4>>>\n\n171.8 Pre-transportation/unction means a function specified in the HMR that is required to assure the safe\ntransportation of a hazardous material in commerce, including-\n(12) Loading, blocking, and bracing a hazardous material package in a freight container or transport\nvehicle\nBased on these citations, we feel that the requirements of 177.834 are a pre-transportation function for which we are\nrelying on the offeror to perform correctly as is their regulatory responsibility. Furthermore all subsections of 177.834\nspecifically speak to load and unloading procedures done by the offeror. As such, it is our opinion that the offeror should\nbe the entity who receives the citation if there is a violation of 177.834.\nPlease feel free to contact me for further clarification of our position on this matter. Thank you in advance for your time.\nSincerely,\nJeff Messer\nSafety Analyst\nCon-Way Truckload\n4701 E. 32nd Street\nJoplin, MO 64803\nPhone: 417-623-5229, Ext. 5561\nFax: 417-782-4768\nThis e-mail and any files transmitted with it are confidential and solely for the use of the individual or entity to\nwhich they are addressed and intended. If you have received this e-mail in error, please notify the sender by\nreturn e-mail. If you are not the intended recipient, you may not read, copy, retain, print, disclose, or distribute\nthis message or its contents to any other individual, for such actions may be unlawful. WARNING: We take\ncertain precautions to prevent viruses, but we are not responsible for loss or damage arising from the use of this\ne-mail or attachments.\n2","truncated":false,"body_characters":8562}