{"operation":"document","citation":"18-0076","title":"Scopelitis, Garvin, Light, Hanson, & Feary, P.C. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2018-08-29","effective_on":null,"summary":"18-0076 response to Scopelitis, Garvin, Light, Hanson, & Feary, P.C. concerning 171.8.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0076.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0076.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-18-0076","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/65856/180076.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nAUG 2 9 2018\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nBrandon K. Wiseman\nScopelitis, Garvin, Light, Hanson, & Feary, P.C.\n10 West Market Street\nSuite 1400\nIndianapolis, IN 46204\nReference No. 18-0076\nDear Mr. Wiseman:\nThis letter is in response to your May 17, 2018, email requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to product returns from\nconsumers.\nIn your letter, you provide a scenario in which:\n• Company XYZ is an online shipping service that offers a platform for\nmanufacturers and retailers to sell their products to end users.\n• Company XYZ does not physically handle the products.\n• Company XYZ will provide a return label to end users upon request.\nWe have paraphrased and answered your questions as follows:\nQ 1. You ask if Company XYZ would be considered an offerer in the scenario provided.\nA 1. Company XYZ would be considered an offerer if it performs a pre-transportation\nfunction, as defined in§ 171.8, or if the label it provides to consumers is used to generate\na hazardous materials shipping paper.\nQ2. You ask if Company XYZ would have any obligations under the HMR in the scenario\nprovided.\nA2. If Company XYZ is not considered an offerer (see Al), then it would have no obligations\nunder the HMR.\n\n<<<PAGE 2>>>\n\nQ3. A3. You ask if requirements for reverse logistics would apply in the scenario provided.\nThe requirements for PHMSA's reverse logistics apply to the transport by motor vehicle\nof goods from a retail store for return to its manufacturer, supplier, or distribution center.\nShipments from a consumer to a manufacturer, supplier, or distribution center would not\nbe considered reverse logistics.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nVJolEott_\nffitteruLD\nii -O01''i.l\nJanuary, Ikeya CTR (PHMSA)\nFrom:\nSent:\nTo:\nSubject:\nAttachments:\nINFOCNTR (PHMSA)\nThursday, May 17, 2018 5:11 PM\nHazmat Interps\nFW: Status of PHMSA Interpretation Rqst\nPHMSA Interpretation Rqst 2-19-18 v2.pdf\nHi lkeya,\nAttached is a request for a letter of interpretation. Mr. Wiseman spoke with Eugenio regarding his request. Please let me\nknow if you have any questions.\nThanks,\nJodi\nFrom: Wiseman, Brandon [mailto:bwiseman@scopelitis.com]\nSent: Thursday, May 17, 2018 1:42 PM\nTo: INFOCNTR (PHMSA) <INFOCNTR.INFOCNTR@dot.gov>\nSubject: Status of PHMSA Interpretation Rqst\nHello,\nEarlier this year, we filed the attached Request for Official Interpretation with PHMSA. We have not yet\nreceived a response, so I just wanted to check on the status. Thank you.\nBrandon K. Wiseman, Attorney\nScopelitis, Garvin, Light, Hanson & Feary, P.C.\n10 West Market Street, Suite 1400, Indianapolis, IN 46204\nbwiseman@scopelitis.com I T: 317.637.1777 I D: 317.492.9296\nCONFIDENTIALITY NOTICE: This message is privileged and confidential for t11e addressee(s) named above. If you are not ti1e intended recipient. you are\nprohibited from disseminating. using. or copying the contents and sl1ould notify tl1e sender immediately that you received this message in error. The s,gnature(sj\nwithin this email does not constitute any binding agreement.\n1\n\n<<<PAGE 4>>>\n\n10 West Market Street\nSuite 1400\nIndianapolis, IN 46204 TIMOTHY W. WISEMAN\ntwiscman@scopclitis.com\n• SCOPELITIS\nGARVIN LIGHT HANSON & FEARY\nThe full def'/Jice traru1portation law firm\nwww.scopelitis.com\nMain: (317) 637-1777\nFax: (317) 687-2414\nFebruary 19, 2018\nU.S. Department of Transportation\nPHMSA Standards and Rulemaking Division\nAttn: PHH-10\nEast Building\n1200 New Jersey Avenue, SE\nWashington, DC 20590-0001\nRe: Request for Official Interpretation\nDear Sir /Madam:\nThis question concerns who is responsible for compliance with the Hazardous\nMaterials Regulations (\"HMRs\") in situations where products are returned by end\nusers, and when those returns are facilitated by the online service from which\nthose end users purchased the products in the first place.\nBy way of example, Company XYZ is an online shopping service that offers a\nplatform for unrelated manufacturers and retailers to sell their products directly\nto end users. Company XYZ does not typically physically handle the products,\nbut merely facilitates the sales by listing the products on its website, collecting\npayments for those products, and occasionally coordinating and accepting\ncustomer returns.\nWhen it comes to customer returns, Company XYZ offers a means by which the\ncustomer can request a return and print a return label so that the customer can\nthen ship the product back to either the manufacturer or retailer directly, or to\nCompany XYZ for disposal. Occasionally, these products may contain small\nquantities of hazardous materials (e.g., lithium batteries). The question, then, is\nwho, as between the customer, the manufacturer/retailer, and Company XYZ, is\nresponsible for complying with the HMRs when the products are returned.\nIndianapolis• Chicago• Washington, D. C. • Los Angeles a Chattanooga• Detroit\nSpokane• Dallas/Fort Worth• Milwaukee• Philadelphia/Mt. Ephraim •Tulsa• Salt Lake City\nS ERVICES OUTSIDE CALIFORNI,\\ ANO MJCHICAN PROVIDED BY SCOPELITlS, GARVIN, LIGHT, HANSON & FEARY, PROFESSIONAL CORPORATION\nSERVICES IN i\\\\ICHIGAN PROVIDED UY SCOPELITIS. CARV I N, LICHT, HANSON & FEARY. PROFF.SS IONAL LIM.ITEn LIABILITY COI\\\\PANY\nSE.RVICF.S IN CALI FORNIA PROVllJtD HY SCOPE.LITJS, Gr\\H.VIN, LIGHT. HANSON&' FE,\\RY, Ltl\\\\TTEO LIADlLfTY PARTNERSHIP\n\n<<<PAGE 5>>>\n\nPage 2\nFebruary 19, 2018\nIt appears the Pipeline & Hazardous Materials Administration (\"PHMSA\")\naddressed a similar, but not identical, question in Interpretation Response #CHI-\n10-005 on October 6, 2010, a copy of which is enclosed. There, PHMSA explained\nthat the responsibility of compliance with the HMRs in \"return scenarios\"\ndepends in large part on who is performing the pre-transportation functions\nlisted in 49 C.F.R. § 171.8. In other words, who qualifies as an \"offeror?\"\nIn that interpretation, PHMSA addressed a situation where Company A issued a\n\"call tag'' to Company B so that Company B could then return hazardous\nmaterials that it had originally received from Company A. In pertinent part,\nPHMSA went on to state:\nIf Company B has opened and closed the package, or placed the\nhazardous material into a new package, they have engaged in pre-\ntransportation functions and must assure that the package is\nproperly closed and certify that the hazardous material is in proper\ncondition for transportation in conformance with the requirements\nof the HMR. Company B is responsible for the package.\nGiven this response, it is our impression that in the Company XYZ scenario\ndescribed above, the end customer would be the \"offerer\" of the product(s) that\nhe/ she is returning, given that he/ she performs the pre-transportation functions\nof selecting and closing the packaging, placing the labels on the packages, and\ntendering the packages to a carrier (e.g., UPS or FedEx) to ship back to the\nmanufacturer/ retailer or to Company XYZ for disposal. It is also our\nunderstanding that Company XYZ would not be an \"offe:ror,\" since it is not\nperforming any pre-transportation functions under 49 C.F.R. § 171.8, but merely\nfacilitating the return by, for example, providing return shipping labels-similar\nto the \"call tags\" issued by Company A in the attached interpretation-and, in\nsome cases, accepting delivery of the returns.\nNevertheless, we respectfully seek confirmation that:\n1. Company XYZ would not be an \"offerer\" of hazardous materials in the\nexample described in this letter, simply by virtue of its facilitation of\nproduct returns from end users to the products manufacturers/retailers.\n2. If so, Company XYZ would have no obligations under the HMRs in the\nexample described in this letter.\n3 . PHMSA's so-called \"reverse logistics\" regulations do not apply in this\ncontext, given that the products are being returned by end consumers\nrather than retailers.\n• SCO PELIT IS\nGARV IN LIG HT HANSON & FEARY\n\n<<<PAGE 6>>>\n\nPage 3\nFebruary 19, 2018\nWe appreciate your consideration of these questions. If you need any additional\ninformation, please contact me.\nVery truly yours,\nTimothy W. Wiseman\nTWW/bkw\nEnclosures\n4813-0395-2188, V. 1\nHISCOPELITIS\nGAllVIN LIGHT HANSON & FEARY\n\n<<<PAGE 7>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety Administration\nOffice of\nChief Counsel\n1200 New Jersey Avenue, S.E.,\nPHC-10, Room E26-331\nWashington. D.C. 20590-0001\nPhone: (202)366-4400\nFax: (202) 366-7041\nEmail: shawn.wolsey@dot.gov\nHazardous Materials Safety\nLaw Division\nLETTER OF INTERPRETATION\nOctober 6, 2010\nAndrea Abraham, Esq.\nMeeks, Sheppard, Leo & Pillsbury\n1735 Post Road, Suite 4\nFairfield, CT 06824\nDear Ms. Abraham:\nThis letter is in response to your email request on September 8, 2010 in which you asked\nfor a Letter of Interpretation from the Office of the Chief Counsel. In particular, you are\nconcerned with the offeror's responsibilities.\nThe Hazardous Materials Regulations, in 49 C.F.R. § 171.8, define a \"Person who offers or\nofferor\" as:\n(1) Any person who does either or both of the following:\n(i) Performs, or is responsible for performing, any pre-transportation function\nrequired under this subchapter for transportation of the hazardous material in\ncommerce.\n(ii) Tenders or makes the hazardous material available to a carrier for\ntransportation in commerce.\n(2) A carrier is not an offeror when it performs a function required by this\nsubchapter as a condition of acceptance of a hazardous material for transportation\nin commerce ( e.g. , reviewing shipping papers, examining packages to ensure that\nthey are in conformance with this subchapter, or preparing shipping\ndocumentation for its own use) or when it transfers a hazardous material to\nanother carrier for continued transportation in commerce without performing a\npre-transp01tation function .\n\n<<<PAGE 8>>>\n\nFurther, the Hazardous Materials Regulations, in 49 C.F.R. § 171.8, define \"Pre-\ntransportation function\" as:\na function specified in the HMR that is required to assure the safe transportation\nof a hazardous material in commerce, including-\n( l) Determining the hazard class of a hazardous material.\n(2) Selecting a hazardous materials packaging.\n(3) Filling a hazardous materials packaging, including a bulk packaging.\n(4) Securing a closure on a filled or partially filled hazardous materials package or\ncontainer or on a package or container containing a residue of a hazardous\nmaterial.\n(5) Marking a package to indicate that it contains a hazardous material.\n(6) Labeling a package to indicate that it contains a hazardous material.\n(7) Preparing a shipping paper.\n(8) Providing and maintaining emergency response information.\n(9) Reviewing a shipping paper to verify compliance with the HMR or\ninternational equivalents.\n( I 0) For each person importing a hazardous material into the United States,\nproviding the shipper with timely and complete infmmation as to the HMR\nrequirements that will apply to the transportation of the material within the United\nStates.\n( I l) Certifying that a hazardous material is in proper condition for transportation\nin conf01mance with the requirements of the HMR.\n( 12) Loading, blocking, and bracing a hazardous materials package in a freight\ncontainer or transport vehicle.\n(l J) Segregating a hazardous materials package in a freight container or transport\nvehicle from incompatible cargo.\n( 14) Selecting, providing, or affixing placards for a freight container or transport\nvehicle to indicate that it contains a hazardous material.\nThe following summarizes your scenario:\nYou represent company (A) which has transported a hazardous material to another\ncompany (B). A package needs to be returned to Company A, so Company A issues a call tag to\nhave the material picked up from Company B and shipped back to Company A. United Parcel\nService (UPS) goes to Company B with a return label, puts it on the package and returns the\n2\n\n<<<PAGE 9>>>\n\npackage to Company A. What liability could Company A face tf an incident occurs en route?\nDoes the liability issue change if the shipment is still in the original Company A packaging and\nhas not been repacked by Company B?\nIn your scenario, Company A has engaged in pre-transportation functions by packaging,\nmarking and labeling the package. Company A has also made the hazardous material available\nto a carrier for transportation to Company B. When the package goes from Company A to\nCompany B, Company A has perfonned all pre-transportation functions and offered the package\ninto commerce. Company A is responsible and must comply with the Hazardous Materials\nRegulations.\nWhen a call tag has been issued by Company A for the hazardous material to be returned\nto Company A, and Company B has not opened the package, Company B has not engaged in any\npre-transportation functions due to the fact that they have not selected the packaging, marked or\nlabeled the package. UPS, as the carrier who places the return label on the package is not a\nperson who offers. However, Company B, is a person who offers because they have made the\npackage available to a carrier for transport. In this situation, Company A and B must both\ncomply with the requirements of the Hazardous Materials Regulations. Company A would have\nmore culpability under the regulations because they selected the packaging, marked and labeled\nthe package.\nIf Company B has opened and closed the package, or placed the hazardous material into a\nnew package, they have engaged in pre-transportation functions and must assure that the package\nis properly closed and certify that the hazardous material is in proper condition for transportation ·\nin conformance with the requirements of the HMR. Company B is responsible for the package.\nYou have also asked the following questions:\nDo the Interpretation letters CHI-04-001 and CHI-04-002 apply to this case? The\ninterpretation letters that you have referenced do not apply to this scenario. Interpretation Letters\nCHI-98-001 and CHI-89-00 I are more on point to this scenario.\nAre there any other interpretation letters involving call tags? No.\n3\n\n<<<PAGE 10>>>\n\nAre they any enforcement action regarding call tags? If so, please provide the\nnumbers/dates. PHMSA has not had any enforcement actions against a company regarding call\ntags.\nI hope this information is helpful.\n. .. .. Sincere!\\) ()\n< ,\n~ ~1}! /~~-\n/ -} Joseph Solomey,\n· / Assistant Chief Counsel for\nHazardous Materials Safety\n4","truncated":false,"body_characters":14678}