{"operation":"document","citation":"22-0037","title":"Linde Gas & Equipment Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2022-12-22","effective_on":null,"summary":"22-0037 response to Linde Gas & Equipment Inc. concerning 172.204, 172.700, 172.701, 172.702, 172.704.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0037.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0037.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-22-0037","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/77086/220037.pdf","body":"<<>>\n\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nDecember 22, 2022\nMr. Mike Stephens\nLinde Gas & Equipment Inc.\n217 Loren St.\nWashington, IL 61571\nReference No. 22-0037\nDear Mr. Stephens:\nThis letter is in response to your April 15, 2022, email and subsequent telephone conversation\nwith a member of my staff requesting clarification of the Hazardous Materials Regulations\n(HMR; 49 CFR Parts 171-180) applicable to two scenarios pertaining to a shipper’s certification\non a shipping paper. In both scenarios, you state that you have domestic customers to whom you\nship cylinders containing hazardous materials via a common carrier. In most cases, you state\nthat your customers are not trained in accordance with the training requirements specified in\n§ 172.704. In such instances, the common carrier delivers the filled cylinders to your customers,\nand you work with your customers on the cylinder return process. You state that you offer this\nservice when your customers are unable to perform shipper functions in accordance with the\nHMR. Finally, you include an example of a document that specifies instructions on package\npreparation that you provide to your untrained customers, and you describe two scenarios as\nfollows:\nScenario #1:\nYou state that your company prepares a bill of lading in accordance with the HMR from a\nremote location, after you have confirmed through photographic evidence—provided by\nyour customer—that the return package has been prepared in accordance with the HMR.\nAn employee of your company certifies that the material offered for transportation\ncomplies with the HMR by signing the “shipper’s certification” on the bill of lading as\nspecified by § 172.204(d)(1). Your company subsequently provides the bill of lading to\nthe carrier, or to your customer for forwarding to the carrier. Based on this scenario, you\nask whether your company can—acting as the “shipper’s agent”—prepare and sign the\nbill of lading and certify that the shipment complies with the HMR although your\ncompany is not physically located at the site of the return shipment.\n\n<<>>\n\nScenario #2:\nYou state that your company acts as the carrier. When your driver arrives at your\ncustomer’s location, the driver confirms that the shipment meets all the requirements of\nthe HMR. The driver then creates a bill of lading and signs the “shipper’s certification”\non the bill of lading before loading and transporting the return cylinders. Based on this\nscenario, you ask whether your company can—acting as the “shipper’s agent”\n—prepare\nand sign the bill of lading and certify that the shipment is in compliance with the HMR.\nUnder both scenarios, the answer to your question is yes. Under the provisions of\n§ 172.204(d)(1), a shipper's certification “must be legibly signed by a principal, officer, partner,\nor employee of the shipper or his agent.” At the direction of your customers or through\ncontractual arrangement, a third party may perform the functions of an offeror—such as signing\nthe certification statement on a shipping paper to certify that hazardous materials are being\noffered for transportation in compliance with the HMR. The person signing the shipper’s\ncertification, whether they be third-party or otherwise, must be properly trained in accordance\nwith §§ 172.700 through 172.704 of the HMR. In addition, the person signing the shipper’s\ncertification is certifying that the consignment is properly classified, described, packaged,\nmarked, labeled, and in proper condition for transportation according to the applicable\nregulations of the Department of Transportation regardless of whom has performed these pre-\ntransportation functions. Any person performing functions of an offeror is responsible for\nperforming those functions in accordance with the HMR.\nPlease note that in both scenarios, because your company is acting as an agent of your customer,\neither your company or your customer may be held responsible for non-compliance with the\nHMR. The degree of regulatory liability is usually determined on a case-by-case basis and is\ndependent on the facts of the specific situation.\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 Branch\nStandards and Rulemaking Division\n\n<<>>\n\nWolcott\nFrom: INFOCNTR (PHMSA)\nTo: Dodd, Alice (PHMSA)\nCc: Hazmat Interps\nSubject: FW: Interpretation request Shippers Agent Linde Gas and Equipment\nDate: Monday, May 2, 2022 2:58:43 PM\nAttachments: 172.204 Shippers Certification Shippers Agent.docx\nAir Gas Shipper Certification interpretation 040021.pdf\nCustomer Cylinder return Procedure.docx\n22-0037\nHello Alice,\nPlease see the below and attached interpretation request.\nShould you have any questions, do not hesitate to reach out.\nRegards,\n-Breanna\nFrom: LG US DISTRIBUTION COMPLIANCE \nSent: Friday, April 15, 2022 12:01 PM\nTo: INFOCNTR (PHMSA) \nCc: Mike R Stephens \nSubject: Interpretation request Shippers Agent Linde Gas and Equipment\nCAUTION: This email originated from outside of the Department of Transportation (DOT). Do\nnot click on links or open attachments unless you recognize the sender and know the content\nis safe.\nStandards and Rulemaking Division,\nPipeline and Hazardous Materials Safety Administration, Attn: PHH-10,\nU.S. Department of Transportation,\nEast Building,\n1200 New Jersey Avenue, SE.,\nWashington, DC 20590-0001.\nRe: Request for Interpretation\nDear Sir or Madame:\nIn accordance with 49 CFR § 105.20, this letter is being submitted to PHMSA to\nrequest an interpretation of the Hazard Materials Transportation Regulations.\nLinde Gas and Equipment Inc (LGE) requests PHMSA to provide an interpretation on\n\n<<>>\n\nwhether a Linde Gas and Equipment Employee acting as the “Shippers Agent” for our\ncustomers when shipping our cylinders back to our location.\nWe have many domestic customers that we ship cylinders that contains hazardous\nmaterial by common carrier. We use common carriers to deliver the products and\nthen work with the customers on the cylinder return process. In most situations,\ncustomers are not trained in Subpart H 49 CFR § 172.704 Hazardous Material\nTraining where LGE employees performing the “Shippers” function are extensively\ntrained in the Subpart H Hazardous Materials regulations\nWhen these customers do not have the size or capability to perform shipping\nfunctions for Hazmat, we have offered the cylinder return service. The attached Word\ndocument specifies the instructions to the customer on the package preparation and\ndetails. We require photographic evidence that the package is in a shippable\ncondition. If we confirm this, we prepare the BOL in accordance with the regulations.\nWe, Linde Gas and Equipment INC, take the position as the shipper, ask for pictures\nthat verify the labeling, DOT markings and Cylinder condition so we can CERTIFY\nthat the cylinder shipment meets the Shippers Certification.\nAfter the Bill of Lading is completed, an employee of Linde Gas and Equipment (LGE)\nwill sign the BOL Shippers certification statement verifying that the cylinder shipment\nmeets the certification statement as written in 49 CFR § 172.204.\n49 CFR § 172.204 Shipper’s certification\n(a) General. Except as provided in paragraphs (b) and (c) of this section, each\nperson who offers a hazardous material for transportation shall certify that the\nmaterial is offered for transportation in accordance with this subchapter by\nprinting (manually or mechanically) on the shipping paper containing the\nrequired shipping description the certification contained in paragraph (a)(1) of\nthis section or the certification (declaration) containing the language contained\nin paragraph (a)(2) of this section.\n49 CFR § 172.204 (d) Signature.\nThe certifications required by paragraph (a) or (c) of this section: [172.204(d)]\n(1) Must be legibly signed by a principal, officer, partner, or employee of the\nshipper or his agent.\nWe have attached a relevant similar Interpretation issued to another company along\nthe same request as “Shippers Agent” interpretation.\nFollowing the process above, the question is,\nCan LGE act as the “Shipper” agent, prepare the bill of lading, sign the BOL certifying\nthe shipment is marked and labeled correctly even though we are not at the site?\n\n<<>>\n\nIf PHMSA has any questions related to this document, please contact:\nMike Stephens\nLinde Gas & Equipment Inc\n217 Loren St\nWashington, Il 61571\nPhone 314-568-6764\ne-mail: LG.US.Distribution.Compliance@Linde.com\nThe information contained in this email and any attachments may be confidential and is provided\nsolely for the use of the intended recipient(s). If you are not the intended recipient, you are hereby\nnotified that any disclosure, distribution, or use of this e-mail, its attachments or any information\ncontained therein is unauthorized and prohibited. If you have received this in error, please contact\nthe sender immediately and delete this e-mail and any attachments. No responsibility is accepted for\nany virus or defect that might arise from opening this e-mail or attachments, whether or not it has\nbeen checked by anti-virus software.\nPlease find the data protection notices of EU based Linde Group companies on this website:\ndataprotection.linde.com\n\n<<>>\n\nReverse Logistics\nAs special needs arise to help our customers return empty cylinders to the fill or stocking\nlocation we may be called on to create the necessary paperwork and the handling of setting\nup the proper common carrier to transport cylinder gas products back to the stocking/filling\nlocation.\nThe following guidelines should allow for a proper documentation and smooth transition.\n1) Request pictures from the customer of the cylinders to be returned.\nA) Verify proper labels attached. These should include the shoulder labels that show\nthey are PDI cylinders along with proper DOT labels.\nB) Verify the DOT shipping description is visible and legible for each cylinder.\nC) Verify that the serial number of the cylinder is legible.\n2) Verify the cylinders shall be secured to a pallet with all DOT labels visible and legible.\nOnce securement is verified complete the next step.\nNOTE: If Product labels including all DOT information is not visible this shipment will be\nconsidered an overpack and additional marking and labeling will be required.\n3) Create a generic Straight BOL for the shipper to utilize. It should have all the required\ninformation filled in including the serial numbers of the cylinders in the shipment, then\nsign the BOL at the shippers certification.\n4) The shipper will be the customer where the cylinders are being picked up from.\n5) We can provide FREIGHT PREPAID services for the customer. This means that the\ncustomer is responsible for the charges.\n6) Contact the Carrier the customer specifies and schedule the pickup from the customer\nlocation.\nNOTE: Verify they can transport hazardous materials\n7) If we provide a FREIGHT COLLECT shipment a handling fee will be charged for\ngenerating the paperwork and paying the freight bill upon receipt. Prior agreement\nwith customer should indicate that we are allowed to bill the freight charges back.\n8) The cylinders should be shipped by the best method using the Connectship tool.\nIf any questions arise, please see your supervisor for clairification.\n\n<<>>\n\nof Transportation\nU.S. Department\nWashington, D.C. 20590\n400 Seventh St., S.W.\nResearch and\nSpecial Programs\nAPR 19 2004\nAdministration\nMr. Richard J. Lloyd\nRef. No.:04-0021\n7201 Hamilton Boulevard\nAir Products and Chemicals, Inc.\nAllentown, PA 18195-1501\nDear Mr. Lloyd:\nregarding the shippers's certification prescribed in 49 CFR 172.204 of the Hazardous Materials\nThis responds to your letter of February 11, 2004, and your follow-up letter of March 30, 2004,\nRegulations (HMR; 49 CFR Parts 171-180). Specifically, you asked whether, on your company's\nbehalf, a third-party carrier could perform the shipper's certification function on the shipping\npaper for the pick-up and transportation of hazardous materials containers being returned to your\ncompany's plant.\nYou have customers whose primary business does not involve hazardous materials and,\nconsequently, they will not issue or prepare shipping papers for the return shipment of empty\ncontainers with a residue of a hazardous material. Your company would supply the third-party\nresidue are inspected by the driver and found to be in compliance, the carrier would sign the\ncarrier you use for pick-up with an unsigned shipping paper. Once the empty containers with\nshipping paper certifying the material is offered for transportation in compliance with the HMR.\nYou asked for confirmation that your understanding is correct that a third-party carrier may\nperform the shipper's certification function.\nYour understanding is correct. At your company's direction or through contractual arrangement,\na third-party carrier may perform the functions of the offeror (shipper), such as signing the\ncertification statement on a shipping paper to certify that an empty container with the residue of a\nhazardous material is being offered for transportation in accordance with the HMR. Under the\nHMR, any person performing functions of an offeror must take responsibility for performing\nthose functions in compliance with the applicable rules.\nI hope this satisfy your inquiry. If we can be of further assistance, please contact us.\nSincerely,\n040021\n§.172.204 (a)\n\n<<>>\n\nPRODUES L\nAR\n7201 Hamilton Boulevard\nAir Products and Chemicals, Inc.\nTel 610 481-4911\nAllentown, PA 18195-1501\nEngrum.\n3172.204 (a)\n11 February 2004\nShipping Papers\n04-0021\nMr. Edward Mazzullo\nU.S. Department of Transportation\nOffice of Hazardous Materials Standards DHM - 10\nResearch and Special Programs Administration\n400 Seventh Street, S. W.\nWashington, D. C. 20590\nDear Mr. Mazzullo:\nRe: Interpretation 49 CFR 172.204 (a) Shipper's Certification\nRecently, we called the Hazardous Materials Information Center for an interpretation of the\nShipper's Certification requirements specified in 49 CFR 172.204 (a). Specifically, we asked if\nfunction on our behalf for the pickup of hazardous materials containers being returned to our\nour company could authorize a third-party carrier to perform the shipper's certification offer's\nshipper's certification provided the person was properly trained in the Hazardous Materials\nplant. The Information Center representative advised us that a third-party carrier could sign the\nRegulations.\nWe have some customers whose primary business does not involve hazardous materials and,\nresidue material remaining in the container. Our nearest plant may be located a significant\nconsequently, will not issue shipping papers for the return shipment of empty containers with\ndistance from the customer and it is not practical to send a person from our plant to the\ncustomer's facility to sign the shipper's certification for the return shipment of the residue\ncontainers. Instead, we propose to provide the third-party carrier that we use for the pickup with\nPlease confirm that our understanding of your interpretation of the Shipper's Certification\nrequirements is correct allowing us to use a third-party carrier for the certification function.\nSincerely,\nManager Regulatory Compliance\nRichard J. Lloyd\nRjl1036\n\n<<>>\n\nStandards and Rulemaking Division,\nPipeline and Hazardous Materials Safety Administration, Attn: PHH-10,\nU.S. Department of Transportation,\nEast Building,\n1200 New Jersey Avenue, SE.,\nWashington, DC 20590-0001.\nRe: Request for Interpretation\nDear Sir or Madame:\nIn accordance with 49 CFR § 105.20, this letter is being submitted to PHMSA to request\nan interpretation of the Hazard Materials Transportation Regulations.\nLinde Gas and Equipment Inc (LGE) requests PHMSA to provide an interpretation on\nwhether a Linde Gas and Equipment Employee acting as the “Shippers Agent” for our\ncustomers when shipping our cylinders back to our location.\nWe have many domestic customers that we ship cylinders that contains hazardous\nmaterial by Common Carrier. We use common carriers to deliver the products, but then\nwork with the customers on the cylinder return process. In most situations, customers\nare not trained in Subpart H 49 CFR § 172.704 Hazardous Material Training where LGE\nemployees performing the “Shippers” function are extensively trained in the Subpart H\nHazardous Materials regulations\nWhen these customers do not have the size or capability to perform shipping functions\nfor Hazmat, we have offered the cylinder return service. The attached Word document\nspecifies the instructions to the customer on the package preparation and details. We\nrequire photographic evidence that the package is in a shippable condition. If we\nconfirm this, we prepare the BOL such as the attached PDF document.\nWe, Linde Gas and Equipment INC, take the position as the shipper, ask for pictures\nthat verify the labeling, DOT markings and Cylinder condition so we can CERTIFY that\nthe cylinder shipment meets the Shippers Certification.\nAfter the Bill of Lading is completed, an employee of Linde Gas and Equipment (LGE)\nwill sign the BOL Shippers certification statement verifying that the cylinder shipment\nmeets the certification statement as written in 49 CFR § 172.204.\n\n<<>>\n\n49 CFR § 172.204 Shipper’s certification (a) General.\nExcept as provided in paragraphs (b) and (c) of this section, each person who\noffers a hazardous material for transportation shall certify that the material is\noffered for transportation in accordance with this subchapter by printing\n(manually or mechanically) on the shipping paper containing the required\nshipping description the certification contained in paragraph (a)(1) of this section\nor the certification (declaration) containing the language contained in paragraph\n(a)(2) of this section.\n49 CFR § 172.204 (d) Signature.\nThe certifications required by paragraph (a) or (c) of this section: [172.204(d)] (1)\nMust be legibly signed by a principal, officer, partner, or employee of the shipper\nor his agent.\nFollowing the process above, the question is,\nCan LGE act as the “Shipper” agent, prepare the bill of lading, sign the BOL certifying\nthe shipment is marked and labeled correctly even though we are not at the site?\nIf PHMSA has any questions related to this document, please contact:\nMike Stephens\nLinde Gas & Equipment Inc\n217 Loren St\nWashington, Il 61571\nPhone 314-568-6764\ne-mail: LG.US.Distribution.Compliance@Linde.com","truncated":false,"body_characters":18714}