{"operation":"document","citation":"16-0061","title":"XPO Logistics — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2016-08-18","effective_on":null,"summary":"16-0061 response to XPO Logistics concerning 171.2, 171.8, 177.834.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-16-0061.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-16-0061.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-16-0061","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2016/160061.pdf","body":"<<>>\n\nof Transportation\nU.S. Department\nWashington, D.C. 20590\n1200 New Jersey Avenue, SE\nMaterials Safety\nPipeline and Hazardous\nAdministration\nAUG 1 8 2016\nMr. Jeff Messer\nXPO Logistics\n4701 East 32nd Street\nJoplin, MO 64804\nReference No. 16-0061\nDear Mr. Messer:\nThis letter is in response to your April 11, 2016, email and subsequent telephone\nconversation requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR\nParts 171-180) applicable to a scenario where the offeror loads the transport vehicle.\nSpecifically, you state that you are an over-the-road commercial carrier that transports\ntrailers loaded by the offeror, and you provide photographs of a scenario showing the loaded\ntrailer in the condition in which it was offered to the driver. The driver did not participate in\nthe loading but did provide a general inspection of the open trailer, verifying that the cargo\nvisible at the tail of the trailer was properly secured, as shown in the enclosed photographs.\nDuring the course of transportation, the carrier was stopped by a State enforcement agent and\nthe trailer was inspected, whereupon the agent determined the interior cargo-which was not\nvisible or assessable from the end of the trailer—-was not secured. You are requesting an\ninterpretation to determine if you are correct in your understanding that the driver exercised\nreasonable care and that the enforcement citation should go to the offeror.\nIt is the opinion of this Office that, barring additional information pertinent to the scenario\nyou describe, the shipper performed and was responsible for the loading and package\nsecurement requirements of § 177.834(a). Regarding carrier responsibility, as specified in\n§ 171.2(f), no person may transport hazmat unless it is transported in accordance with the\nHMR. The carrier may rely on information provided by the offeror (the shipper) of the\nhazmat unless the carrier -or a reasonable person acting in the circumstances and exercising\nreasonable care-has knowledge that the information provided by the offeror is incorrect.\nSee § 171.8 for the HMR definition of \"person who offers\" or \"offeror.\" Note that, in\ngeneral, whenever hazmat has not been shipped in compliance with the HMR, the\nDepartment of Transportation will attempt to identify and bring an enforcement proceeding\nagainst the person who first caused the transportation of the noncomplying shipment. See the\nformal interpretation of carrier responsibility when accepting hazmat for transportation in\ncommerce (June 4, 1998; 63 FR 30411).\n\n<<>>\n\nIn the absence of participating in the loading operation or having access to the full interior of\nthe loaded trailer, it is assumed that the carrier would be relying on the shipping paper and\nthe accompanying certification that the packages are in proper condition for transportation\n(i.e., properly secured). Unless the carrier had actual or constructive knowledge, beyond the\ninformation available in the photographs, that the interior packages were not properly\nsecured, we see no reason for the driver to have refused this shipment.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nIlenn Foste\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandard and Rulemaking Division\n\n<<>>\n\nhehman\n8817330-177-834\nShippers Respons.\nDodd, Alice (PHMSA)\n1l6-006l\nFrom:\nGeller, Shelby CTR (PHMSA)\nSent:\nWednesday, April 13, 2016 11:43 AM\nTo:\nHazmat Interps\nSubject:\nFW: 173.30 and 177.834\nAttachments:\nohio letter.pdf; 20150827_101916.jpg; 20150827_101939.jpg; 20150827_101946 (1).jpg\nDear Shante and Alice,\nForwarded is a request for a formal letter of interpretation. Mr. Messer spoke with Jordan.\nThanks,\nShelby\nFrom: Jeff Messer [mailto:jeff.messer@xpo.com]\nTo: PHMSA HM InfoCenter\nSent: Monday, April 11, 2016 4:24 PM\nSubject: 173.30 and 177.834\nI have attached three photos and copy of a letter of interpretation # 13-0195. Our company had a driver pick up\na loaded trailer that he inspected for securement (see pics). Our driver did not participate in the loading of the\ntrailer and only was able to view the rear of the trailer and relied on the shipping papers being certified.\nAccording to the attached letter I would believe the driver did rely on the information provided from the offer\nand of the hazmat and did exercise reasonable care and acted in a circumstance and exercised reasonable\ncare and did not know the offeror did not secure the cargo beyond the tail of the truck. The end of the letter\nstates that a driver may nor ignore readily apparent information that would indicate the packages are not\nproperly secure. I believe our driver did due diligence by inspecting the load and relying on information from\nthe shipper. Would the proper violation be against the offeror under 173.30. if found in a road side inspection.\nJeff Messer\nTruckload | Safety Analyst\nXPOLogistics\nJoplin, MO 64804, USA\n4701 East 32nd Street\nF: +1 417-659-5182\nO: +1 800-641-4747 ext 5561\n\n<<>>\n\nof Transportation\nU.S. Department\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nPipeline and Hazardous\nAdministration\nMaterials Safety\nDEC 2 3 2013\nMr. Tom Forbes\nPublic Utilities Commission of Ohio\n180 E Broad Street, 4* Floor\nTransportation Department\nColumbus, OH 43215\nRef. No. 13-0195\nDear Mr. Forbes:\nThis responds to your October 15, 2013 email regarding enforcement of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180). In your email, you describe a scenario\nwhere a shipper loads a van trailer with hazardous materials (hazmat) packages and then seals\nthe trailer noting that the carrier is not present during loading. The shipper then instructs the\ncarrier not to break the seal and provides a shipping paper. During the course of\ntransportation, the carrier is stopped by a State enforcement agent and the trailer is inspected\nwhereupon the agent discovers the hazmat packages are not secured. With respect to this\nsituation, you request clarification of the person in violation of the package securement\nrequirements of § 177.834(a) of the HMR.\nIt is the opinion of this Office that, and barring additional information pertinent to the\nscenario you describe, the person performing the loading of the hazmat packages in the motor\nvehicle is in violation of the package securement requirements of § 177.834(a); in this case\nthe shipper. Regarding carrier responsibility, as specified in § 171.2(f), no person may\ntransport hazmat unless it is transported in accordance with the HMR. The carrier may rely\non information provided by the offeror (the shipper) of the hazmat unless the carrier knows\nor, a reasonable person, acting in the circumstances and exercising reasonable care, would\nhave knowledge that the information provided by the offeror is incorrect. See § 171.8 for the\nHMR definition of person who offers or offeror. Note that in general, whenever hazmat has\nnot been shipped in compliance with the HMR, DOT will attempt to identify and bring an\nenforcement proceeding against the person who first caused the transportation of the\nnoncomplying shipment. See the formal interpretation of carrier responsibility when\naccepting hazmat for transportation in commerce (June 4, 1998; 63 FR 30411).\nIn the absence of participating in the loading operation or having access to the loaded trailer,\nit is assumed that the carrier would be relying on the shipping paper and the accompanying\ncertification that the packages are in proper condition for transportation; i.e., properly secured.\n\n<<>>\n\nUnless the carrier has actual or constructive knowledge that the packages are not properly\nsecured, we see no reason not to accept the shipment. However, the carrier may not ignore\nreadily apparent information that would indicate the packages are not properly secured.\nI hope this information is helpful. If you have further questions, please contact this office.\nSincerely,\nKhot Bilit\nRobert Benedict\nChief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<>>\n\nDer Kinderen\n3173.22\nDrakeford, Carolyn (PHMSA)\nSeem:\nINFOCNTR (PHMSA)\nTo:\nThursday, October 17, 2013 11:10 AM\nShipper's Responsibility\nSubject:\nDrakeford, Carolyn (PHMSA)\nFW: Interpretation Request\n13-0195\nHi Carolyn,\nThis caller requested we submit this e-mail as a formal letter of interpretation.\nVictoria\nThanks,\nFrom: Forbes, Tom [mailto:Tom. Forbes@puc.state.oh.us]\nTo: PHMSA HM InfoCenter\nSent: Tuesday, October 15, 2013 7:47 AM\nSubject: Interpretation Request\nOctober 15, 2013\nAttn: PHH-10\nPHMSA Office of Hazardous Materials Standards\nEast Building\nWashington, DC 20590-0001\n1200 New Jersey Avenue, SE.\nWe are requesting written interpretation providing clarification of the regulatory responsibility for securement of\npackages of hazardous materials under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) in the following\nloading scenario.\nA shipper pre-loads and seals a van trailer containing hazardous materials. The shipper instructs the carrier not to break\nto the carrier.\nthe seal. No carrier personal was present during the loading. The shipper provides a properly completed shipping paper\ninspector. The inspector discovers the hazardous material is not secured at all.\nWhile transporting the shipment between Point A and Point B the carrier get stopped and inspected by a MCSAP certified\nin this scenario?\nShould a securement/loading violation be listed against the carrier only, the shipper only or both the carrier and shipper\nThank you for your assistance in this matter.\nTom Forbes, Enforcement Supervisor\nPublic Utilities Commission of Ohio\nTransportation Department\n180 E Broad Street, 4** Floor\n1\n\n<<>>\n\n. Columbus, OH 43215\nPhone 614-644-0296\nFax 614-728-2133\n\n<<>>\n\n\n\n<<>>\n\nE\nNG609\nDREAMI\nHOIS\n\n<<>>\n\n32A 6.34","truncated":false,"body_characters":9850}