{"operation":"document","citation":"17-0004","title":"Law Offices of Paul A. Lange, LLC — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2017-08-22","effective_on":null,"summary":"17-0004 response to Law Offices of Paul A. Lange, LLC concerning 171.8, 175.26.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-17-0004.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-17-0004.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-17-0004","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2017/170004.pdf","body":"<<<PAGE 1>>>\n\n80 Ferry Boulevard\nStratford, CT 06615\nReference No. 17-0004\nDear Mr. Grocki:\nThis letter is in response to your January 13, 2017, e-mail and letter requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the signage\nrequirement in § 175.26. Specifically, you ask if Office Depot, Inc. (Office Depot) is required to\ndisplay notices informing persons who offer hazardous materials for transport by aircraft of the\nrequirements for transporting these materials and the penalties for non-compliance. You note\nthat Office Depot does not accept packages that contain hazardous materials, a policy that is\nmade evident via in-store signs, advisory statements in the intake package processing system,\nquestions from store staff, and contractual agreement with FedEx. You also state posting notices\nin conformance with § 175.26 may create an adverse effect on aviation and public safety.\nThe answer is yes. Section 175.26 requires those who receive cargo for transport by aircraft to\ndisplay notices that inform all persons who offer cargo for transport by aircraft of the\nrequirements for transporting hazardous materials by aircraft and the penalties for violating these\nrequirements. The intent of these notices is to provide these persons with information that may\nhelp avert potential risks in aviation caused by undeclared hazardous materials.\nYou further question whether Office Depot meets the definition of a \"person\" as defined in\n49 CFR 171.8. Office Depot undoubtedly qualifies as a \"person\" under the HMR when\nconducting its normal business activities pertaining to selling office products. The HMR do not\nallow for a company to be considered a person for some purposes, but not others. Even if this\nwere not true, however, Office Depot would unintentionally become a person if it were to accept\nan undeclared shipment for air transportation not knowing that it contained hazardous materials.\nYou may wish to submit an application for a special permit or a petition for rulemaking to obtain\nthe requested relief from the § 175.26 requirement. See 49 CFR 106.95-106.130 and 107.101-\n107.127, respectively. Special permits may authorize relief from the requirements in the HMR\nprovided the applicant demonstrates an equivalent or greater level of safety to that intended by\nthe regulation. You may obtain information on the special permit application process from our\nWeb site at http://www.phmsa.dot.gov/hazmat/regs/sp-a, or by calling the Pipeline and\nHazardous Materials Safety Administration's (PHMSA's) Approvals and Permits Division at\n(202) 366-4511. An applicant may also request PHMSA add, amend, or delete a regulation in\n\n<<<PAGE 2>>>\n\nsten sastr\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nHi Shante/ Alice,\nPlease submit this as a letter of interpretation. Please let me know if you have any questions.\nThanks,\nJordan\nFrom: Paul M. Grocki [mailto:pmg@lopal.com]\nSent: Friday, January 13, 2017 10:41 AM\nTo: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>\nSubject: Request for Legal Interpretation Pursuant to 49 C.F.R. 105.20(a); Attn: PHH-10\nDear Sir or Madam:\nAttached please find a request for legal interpretation from the Pipeline and Hazardous Materials Safety Administration\npursuant to 49 C.F.R. 105.20(a). Please do not hesitate to contact me should you have any questions. I kindly request\nthat you please confirm your receipt of this email and the attachment. Thank you.\nRegards,\nPaul M. Grocki, pmg@lopal.com\nLaw Offices of Paul A. Lange, LLC www.lopal.com\nPracticing in CT, NY & MA; nationwide in aviation regulatory and transactional matters\nLaw Offices of\nPaul A. Langeuc\nNAVIGATING THE WAY •\nNew York > Connecticut › Massachusetts\nCT office: 80 Ferry Blvd., Stratford, CT 06615-6079 | 203.375.7724 x104| 203.375.9397 (F)\nNY office: 445 Park Ave., 9th Fl., New York, NY 10022-8632 | 212.385.1215 | 212.608.1215 (F)\nCONFIDENTIALITY NOTICE: This email and any attachments are for the exclusive and confidential use of the intended recipient. If you are not the intended recipient,\nplease do not read, distribute or take action in reliance upon this message. If you have received this in error, please notify us immediately by return email and\npromptly delete this message and its attachments from your computer system. We do not waive attorney-client or work product privilege by the transmission of this\nmessage.\nIRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained\nin this communication (including any attachments) is not intended or written to be used, and cannot be used for and cannot be used, for the purpose of (i) avoiding\npenalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.\n1\n\n<<<PAGE 4>>>\n\nJanuary 13, 2017\nSENT VIA EMAIL TO infocntr@dot.gov\nStandards and Rulemaking Division\nPipeline and Hazardous Materials Safety Administration\nAttn: PHH-10\nU.S. Department of Transportation\nEast Building, 1200 New Jersey Avenue, SE.\nWashington, DC 20590-0001\nRe:\nRequest for Legal Interpretation Concerning the Applicability of 49 C.F.R. § 175.26\nDear Sir or Madam:\nPursuant to 49 C.F.R. § 105.20 (a), Office Depot, Inc. (\"Office Depot\") respectfully\nrequests a legal interpretation of the Hazardous Materials Regulations (\"HMRs\").\nSpecifically, Office Depot requests a legal interpretation regarding the following issue:\n\"Whether the signage requirement of 49 C.F.R. § 175.26 (\"§ 175.26\") applies to Office\nDepot where Office Depot categorically does not accept hazardous materials (\"HAZMAT\")\nfor transportation and where posting said signage creates the risk of an adverse effect on\naviation safety and the safety of the public at large.\"\nOffice Depot maintains that the signage required under § 175.26 does not apply to\nit because it does not accept HAZMAT for shipment. As set forth more fully below, this\nconclusion is supported by both the interests of aviation safety and by applicable law.\nI.\nFACTS\nOffice Depot is a leading provider of office supplies and services. One of such\nservices is the acceptance of packages at its stores. Pursuant to a contract with FedEx,\nOffice Depot accepts packages for transportation on behalf of FedEx. The contract\nexplicitly prohibits Office Depot from accepting for shipment any packages containing\nHAZMAT. There are two methods by which packages are tendered for transportation at\nOffice Depot stores:\n• (1) customers process a package for shipment directly with FedEx by phone or\nthrough the FedEx website and drop off the package at an Office Depot store; or\n\n<<<PAGE 5>>>\n\nassociates that it does not accept packages that contain HAZMAT. Specifically, when a\ncustomer processes a package for shipment in an Office Depot store, the computerized\nkiosk prompts the customer to confirm that the package does not contain HAZMAT before\nthe customer can continue processing the shipment, expressly noting that the shipment\nof HAZMAT is prohibited. Moreover, through screens on the kiosk the customer is\ninformed of items considered HAZMAT. After completing processing on the computerized\nkiosk, the customer must then further confirm with a sales associate that the package\ndoes not contain HAZMAT. Office Depot also prominently displays signs at its stores, in\nplain sight for its customers to see, which explicitly and clearly state that the shipping of\nHAZMAT is strictly prohibited.\nII. TEXT OF 49 C.F.R. § 175.26\n49 C.F.R. § 175.26 provides in relevant part:\n(a) Each person who engages in the acceptance or transport of cargo for\ntransportation by aircraft shall display notices to persons offering such cargo\nof the requirements applicable to the carriage of hazardous materials\naboard aircraft, and the penalties for failure to comply with those\nrequirements, at each facility where cargo is accepted. Each notice must\nbe legible, and be prominently displayed so it can be seen. At a minimum,\neach notice must communicate the following information:\n(1) Cargo containing hazardous materials (dangerous goods) for\ntransportation by aircraft must be offered in accordance with the\nFederal Hazardous Materials Regulations (49 CFR parts 171\nthrough 180).\n(2) A violation can result in five years' imprisonment and penalties of\n$250,000 or more (49 U.S.C. 5124).\n(3) Hazardous materials (dangerous goods) include explosives,\ncompressed gases, flammable liquids and solids, oxidizers, poisons,\ncorrosives and radioactive materials.\n(b) The information contained in paragraph (a) of this section must be\nprinted:\n2\n\n<<<PAGE 6>>>\n\nBased upon these facts, and as discussed in detail below, both the interests of\naviation safety and applicable law support a finding that the signage requirements of §\n175.26 do not apply to Office Depot.\nPosting the Signage Pursuant to § 175.26 is Adverse to Aviation Safety\nand the Safety of the Public at Large\nOffice Depot is fully committed to complete and total compliance with the Federal\nAviation Regulations (\"FARs\") and ensuring/promoting aviation safety. It is for this exact\nreason that Office Depot is hesitant to display the § 175.26 signage, because doing so in\nthese circumstances could have an adverse impact on aviation safety and the safety of\nthe public at large.\nAs discussed above, Office Depot does not accept packages containing HAZMAT\nfor shipment. Indeed, Office Depot prominently displays signs at its stores, which\nexplicitly and unequivocally state that the shipping of HAZMAT is strictly prohibited.\nMoreover, the computerized kiosks necessary to process a shipment at an Office Depot\nstore also explicitly advise customers that shipping HAZMAT is prohibited. In addition,\nthe Office Depot associate confirms with the customer that his or her package does not\ncontain HAZMAT. In light of the clear and prominent messaging that Office Depot does\nnot ship HAZMAT, simultaneously displaying signage containing directions that if\nand it creates a serious risk that customers would ship HAZMAT from an Office Depot\nencouraging customers to ship HAZMAT, a litany of other FARs and HMRs might then\napply to Office Depot as an unintended consequence.\nIn light of the foregoing, the interest of aviation safety and the safety of the public\nat large supports a finding that § 175.26 does not apply to Office Depot under these\ncircumstances.\nB. Applicable Law and Legal Interpretations Establish that $ 175.26 does\nnot Apply to Office Depot\nIn addition to the interests of aviation safety and the safety of the public at large,\napplicable law and legal interpretations support a finding that § 175.26 does not apply to\nOffice Depot.\n3\n\n<<<PAGE 7>>>\n\nAs stated above, § 175.26 applies to \"le\nacceptance or transport of cargo for transportation b\nWent does t\nustanhers\nPerson means an individual, corporation,\npartnership, society, joint stock company; or\nauthority of a government or Tribe, that offers a hazardous matru....\ntransportation in commerce, transports a hazardous material\nsupport a commercial enterprise, or designs, manufactures,\nfabricates, inspects, marks, maintains, reconditions, repairs, or tests\na package, container, or packaging component that is represented,\nmarked, certified, or sold as qualified for use in transporting\nhazardous material in commerce.\n(Emphasis Added.) 49 C.F.R. § 171.8.\nBased upon this definition of \"person,\" it is\nunequivocal that § 175.26 applies solely to entities that offer HAZMAT for air\ntransportation or otherwise work with HAZMAT that is transported in commerce. This\nlimitation of the applicability of § 175.26 is furthered confirme\nof the HMRs only \"applies to the offering, acceptance, and tri\nmaterials in commerce by aircraft to, from, or within the Unite\nshareldive\nof United States registry anywhere in air commerce.\" (Empl\n175.1 (b).\nadolers the\n175.26 only applies to entities that accept HAZMAT for air t\nFederal Register Vol. 1, No, 25, March 22, 2006, provides tha\nare also subject to the requirements in part 175 when accel\nfor air transportation.\" (Emphasis added.) Pg. 14587. Mc\nregulation also provides that the HMRs \"apply to any persor\nperform, or is required to perform any function subject to tr\ncarriers, indirect air carriers and freight forwarders and\nemployees, agents, subsidiary and contract personnel that a\nfor air transportation.\" (Emphasis added.) Id., pg. 14591.\n4\n\n<<<PAGE 8>>>\n\nsupport the conclusion that §175.26 does not apply to Office Depot. Additinnall. t-\nKasza-Scott legal interpretation, Ref. No. ^\nInterpretation,\" annexed hereto), provides furthe\nOffice Depot.\nIn the UPS Interpretation, a UPS Store inc\nto certain acceptance functions performed at\ninquired about the circumstances under which it\nHMRs for accepting undeclared HAZMAT ship\nGenerally\ntransportation.\nThe UPS Interpretation noted\nshipments containing HAZMAT.? The UPS Intel\nStore that does not accept hazardous materia\nnot apply to that store's operations\"\n(Emph\nunequivocally does not accept shipments conta\nInterpretation, § 175.26 does not apply to it.\nThe UPS Interpretation goes on to state ti\nStores merely because they accept packages on behalf of UPS as an agent. To the\ncontrary, the UPS Interpretation simply reasons that due to the agency relationship, \"a\nUPS Store could be found to be in violation of the HMR if it accepts an undeclared\nhazardous materials shipment for transportation when it knows that the shipment contains\na hazardous material, or a reasonable person, acting in the circumstances and exercising\nreasonable care, would know that the shipment contains a hazardous material.\" The UPS\nInterpretation merely provides that even if a store does not accept HAZMAT shipments\nfor transportation, that store must still exercise reasonable care if it notices possible\nindicators of HAZMAT in a shipment.\nTherefore, the UPS Interpretation provides further support that § 175.26 does not\napply to Office Depot.\nIV. CONCLUSION\n' It should be noted that § 175.26 (d) (1) provides that the signage requirements do not apply to \"[a]n\nunattended location (e.g., a drop box) provided a general notice of advising customers of a prohibition on\nhipments on hazardous materials through that location is prominently displayed...\nExcept for ORM-D. It should be noted that Office Depot does not permit the shipment of ORM-D\n5\n\n<<<PAGE 9>>>\n\nPaul M. Grocki\nPMG/jIr\nEnclosure\nCC:\nMr. Paul Serafin\nHazardous Materials Safety Section Manager\nFederal Aviation Administration\nAHC-520\npaul.serafin@faa.gov\n6\n\n<<<PAGE 10>>>\n\nMaterials Safety\nOffice of\nAdministration\nChief Counsel\nSEP : i 2007\nHazardous Materials Safety\nLaw Division\nMs. Nancy Kasza-Scott\nRef. No.: 06-0085\nOwner\nThe UPS Store\n4962 Hononegah Road\nRoscoe, Illinois 61073\nDear Ms. Kasza-Scott:\nThis responds to your April 24, 2006 letter regarding the applicability of the Hazardous Materials\nRegulations (HMR; 49 CFR Parts 171-180) to certain acceptance functions performed at your\nplace of business. Specifically, you ask about the circumstances under which a UPS Store could\nbe found to be in violation of the HMR for accepting undeclared shipments or non-compliant\npackages for transportation. I apologize for the delay in responding and any inconvenience it\nmay have caused.\nIt is our understanding that UPS Stores, which are owned and operated by independent\nfranchisees, do not accept hazardous materials shipments on behalf of UPS. The one exception\nto this policy is the acceptance of ORM-D materials offered for carriage by ground transportation\nat some UPS Store locations.\nFor a UPS Store that does not accept hazardous materials shipments, the HMR generally do not\napply to that store's operations. However, for purposes of the HMR, a UPS Store is considered\nto be an agent of UPS because it accepts packages for transportation on behalf of UPS. The\nHMR permit a carrier or the carrier's agent to rely on information provided by the person\noffering a package for transportation unless the carrier or agent knows or a reasonable person,\nacting in the circumstances and exercising reasonable care, would have knowledge that the\ninformation provided is incorrect (see § 171.2(f)). Thus, a UPS Store could be found to be in\nviolation of the HMR if it accepts an undeclared hazardous materials shipment for transportation\nwhen it knows that the shipment contains a hazardous material, or a reasonable person, acting in\nthe circumstances and exercising reasonable care, would know that the shipment contains a\nhazardous material. Some possible indicators of hazardous materials include a hazard label or\n\n<<<PAGE 11>>>\n\nWe note that an offeror who fails to properly declare (and prepare) a shipment of hazardous\nmaterials bears the primary responsibility for a hidden shipment. Indeed, whenever hazardous\nmaterials have not been shipped in accordance with the HMR, DOT generally will attempt to\nidentify and bring an enforcement proceeding against the person who first caused the\ntransportation of a non-complying shipment.\nUPS Store personnel accepting ORM-D materials offered for ground transportation on behalf of\nUPS must ensure that the shipment conforms to all applicable HMR requirements prior to\naccepting the shipment. Again, the UPS Store may rely on information provided by the person\noffering the package for transportation unless it knows, or a reasonable person acting in the\ncircumstances and exercising reasonable care, would have knowledge that the information\nprovided is incorrect. Employees of the UPS Store who accept packages must be trained in\naccordance with Subpart H of Part 172 of the HMR.\nYou should also be aware that the Federal Aviation Administration has issued regulations\ngoverning air carriers that do not accept or transport hazardous materials, and these regulations\nmay apply to some aspects of your operation. You may wish to contact the Director, Office of\nHazardous Materials, ADG-1, Federal Aviation Administration, 800 Independence Ave. SW,\nRoom 300 East, Washington, DC 20591, 202-267-9864, for additional information.\nSincerely,\nSoul soong\nJoseph Solom\nAssistant Chief Counsel\n\n<<<PAGE 12>>>\n\n815.623.3388 Fax\nstore3915@theupsstore.com\nApril 24, 2006\nMr. Edward T Mazzullo\nDirector, Office of Hazardous Materials Standards\nS.S. DOT/PHMSA (PHH-10)\n400 gh St. SW\nWashington, D.C. 20590-0001\nSir;\nWe are seeking a formal letter of determination from the DOT. The UPS Stores are\nHere is the situation; we are contractually required to accept pre-paid packages for\ncustomers of UPS. These are NOT our customers: they simply use our locations as a\ndrop-off point. They are direct customers of UPS. UPS does not assume responsibility\nfor these packages until they are placed in their truck. These packages come to • closed,\ntaped and labeled for shipping. Often the person dropping the package off does nut even\nknow the contents of the package. Occasionally, a pre-paid package will have the ORM-\nD label on the box, with a pre-paid return label, given to that person by the company who\noriginally sent the product. The person bringing the package to us has no understanding\nof the meaning of that ORM label and cannot tell us if the materials inside are hazardous.\nPlease provide a letter of determination for the following question:\nUnder what circumstances would a storeowner be fined, by the Department of\nTransportation, for violating Hazmat regulations?\nThe IPS Store®\n\n<<<PAGE 13>>>\n\n815.623.3388 Fax\nstore3915@theupsstore.com\nPlease take the following into consideration:\n• We are NOT instructed to inspect the contents of packages, nor are we trained or\ncompensated to perform this function.\n• It is our understanding that hazmat shippers are required to attend training. If so,\ncan companies like UPS, Avon, etc., knowingly provide shipping labels to\nconsumers who they know have no understanding of hazmat procedures.\n: If a UPS Store franchisee were fined by the DOT for unknowingly introducing a\nCan UPS legally require us to accept packages that we have no control over?\nhazmat package into the system, would the sender (i.e., Avon...) and UPS also be\nfined?\nOne of our fellow storeowners had a fire damage his store. There is suspicion that the\nfire was started by a drop-off package. One can assume that this package would also\ncontain hazardous materials, since it was flammable. How would the Department of\nTransportation rule if this same package caught on fire in a UPS truck, plane or at a hub?\nThank you, in advance, for your assistance in this manner. A letter of determination will\nhelp us, as storeowners, develop policies and procedures to protect our business from\nunnecessary liability and to promote proper handling of all packages.\nIf you have questions regarding this request, please contact me at 815-623-5808.\nThank you.\nNancy scott\nThe UPS Store:\n\n<<<PAGE 14>>>\n\n815.623.3388 Fax\nstore3915@theupsstore.com\nMay 23.2006\nOffice Of Hazardous Matcrials Standards\nDirector Edward T Mazzullo\nS.S. DOT/PHMSA (PHH-10)\n400 7° St SW\nWashington, D.C. 20590-001\nSir;\nAs a small business owner, I am seeking clarification, in written form, for DOT regulations that\nrelate to acceptance of and shipping of packages as a retail shipping outlet. Obviously we\npackage and ship items for our customers and, in that capacity, are responsible for following\nHAZMAT guidelines. However, we are required, by contract with UPS, FedEx, etc to accipr\npre-paid packages, which are simply dropped off at our business for later pick-up by a carrier's\nI will not re-hash all of the issues involved Enclosed are copies of my previous requests. It is\nour understanding that if one of these packages was found to contain HazMat we could be fined\nfor \"introducing' the package into the shipping system. We are not trained to identify hazardous\nmaterials. Recently, The Home Office of Mail Boxes Etc, Inc, began instructing franchisee's that\nthey are to inspect packages.\nI have made 3 attempts to get written clarification on these issues. I need a written letter of\nDetermination, so that we, as small business owners, can develop policies and procedures to\nprotect our employees, our businesses and ourselves. Only an official, written, letter of\ndetermination will allow us to go back to the carriers and effect changes in the contractual\nrequirements that put us at risk.\nI would apocan be open of this ter and an aproximate a a ter of\nThank You,\nNancy Scott\nThe UPS Storer\n\n<<<PAGE 15>>>\n\ncompanies like UPS, Avon, etc., knowingly provide shipping labels to consumers who\nthey know have no understanding of hazmat procedures.\nCan UPS legally require us to accept packages that we have no control over!\n• If a UPS Store franchisee were fined by the DOT for unknowingly introducing a hazmat\npackage into the system, would the sender (i.e., Avon...) and UPS also be fined?\nOne of our fellow storeowners had a fire damage his store. There is suspicion that the fire was\nstarted by a drop-off package. One can assume that this package would also contain hazardous\nmaterials, since it was flammable. How would the Department of Transportation rule if this same\npackage caught on fire in a UPS truck, plane or at a hub?\nThank you, in advance, for your assistance in this manner. A letter of determination will help us,\nas storeowners, develop policies and procedures to protect our business from unnecessary liability\nand to promote proper handling of all packages.\nIf you have questions regarding this request, please contact me at 815-623-5808.\nThank you.\nNancy Scott\n\n<<<PAGE 16>>>\n\nApril 24, 2006\nDirector, Office of Hazardous Materials Standards\nMr. Edward T Mazzullo\nS.S. DOT/PHMSA (PHH-10)\n400 7\" St. SW\nWashington, D.C. 20590-0001\nSir;\nWe are seeking a formal letter of determination from the DOT. The UPS Stores are owned and\noperated by independent franchisees. We believe that we are exposed to potential liability for\nines levied by the DOT for hazardous materials that we may unknowing be introducing into th\nhipping system. Although we have tried many times, in many different ways, to get an answe\nfrom our Franchisor, we have not been able to get a clear, consistent response.\nlere is the situation; we are contractually required to accept pre-paid packages for customers o\nJPS. These are NOT our customers: they simply use our locations as a drop-off point. They ar\nirect customers of UPS. UPS does not assume responsibility for these packages until they ar\nlaced in their truck. These packages come to us closed, taped and labeled for shipping. Ofte\nUnder what circumstances would a storeowner be fined, by the Department of Transportation, for\nviolating Hazmat regulations?","truncated":false,"body_characters":24708}