The UPS Store — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration 1200 New Jersey Ave, S.E., Room E26-326 Washington, D.C. 20590-0001 Phone: (202) 366-4400 Fax: (202) 366-7041 Office of Chief Counsel Hazardous Materials Safety Low Division SEP 2007 i Ms. Nancy Kasza-Scott Ref. No.: 06-0085 Owner The UPS Store 4962 Hononegah Road Roscoe, Illinois 61073 Dear Ms. Kasza-Scott: This responds to your April 24, 2006 letter regarding the applicability ofthe Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to certain acceptance functions performed at your place of business. Specifically, you ask about the circumstances under which a UPS Store could be found to be in violation ofthe HMR for accepting undeclared shipments or non-compliant packages for transportation. I apologize for the delay in responding and any inconvenience it may have caused. It is our understanding that UPS Stores, which are owned and operated by independent franchisees, do not accept hazardous materials shipments on behalf of UPS. The one exception to this policy is the acceptance of ORM-D materials offered for carriage by ground transportation at some UPS Store locations. For a UPS Store that does not accept hazardous materials shipments, the HMR generally do not apply to that store's operations. However, for purposes of the HMR, a UPS Store is considered to be an agent of UPS because it accepts packages for transportation on'behalf of UPS. The HMR permit a carrier or the carrier's agent to rely on information provided by the person offering a package for transportation unless the carrier or agent knows or a reasonable person, acting in the circumstances and exercising reasonable care, would have knowledge that the information provided is incorrect (see § 171.2(f)). Thus, a UPS Store could be found to be in violation of the HMR if it accepts an undeclared hazardous materials shipment for transportation when it knows that the shipment contains a hazardous material, or a reasonable person, acting in the circumstances and exercising reasonable care, would know that the shipment contains a hazardous material. Some possible indicators ofhazardous materials include a hazard label or#

Page 22 caution statement on the package with no accompanying shipping documentation, or a notation such as "flammable paint" without proper shipping declarations or labels or markings. We strongly recommend that UPS Store employees receive training in how to recognize a possible undeclared hazardous materials shipment. We note that an offeror who fails to properly declare (and prepare) a shipment ofhazardous materials bears the primary responsibility for a hidden shipment. Indeed, whenever hazardous materials have not been shipped in accordance with the HMR, DOT generally will attempt to identify and bring an enforcement proceeding against the person who first caused the transportation of a non-complying shipment. UPS Store personnel accepting ORM-D materials offered for ground transportation on behalf of UPS must ensure that the shipment conforms to all applicable HMR requirements prior to accepting the shipment. Again, the UPS Store may rely on information provided by the person offering the package for transportation unless it knows, or a reasonable person acting in the circumstances and exercising reasonable care, would have knowledge that the information provided is incorrect. Employees ofthe UPS Store who accept packages must be trained in accordance with Subpart H of Part 172 of the HMR. You should also be aware that the Federal Aviation Administration has issued regulations governing air carriers that do not accept or transport hazardous materials, and these regulations may apply to some aspects of your operation. You may wish to contact the Director, Office of Hazardous Materials, ADG-l, Federal Aviation Administration, 800 Independence Ave. SW, Room 300 East, Washington, DC 20591,202-267-9864, for additional information. oseph Solomey Assistant Chief Counsel#

Page 3Stevens 5171.1 Nancy Kasza-Scott Applicability Owner Of Coss 4962 Hononegah Road 815.623.5808 Tel Roscoe, IL 61073 store3915@theupsstore.com 815.623.3388 Fax April 24, 2006 Mr. Edward T Mazzullo Director, Office of Hazardous Materials Standards 4007* St. SW S.S. DOT/PHMSA (PHH-10) Washington, D.C. 20590-0001 Sir; We are seeking a formal letter of determination from the DOT. The UPS Stores are in many different ways, to get an answer from our Franchisor, we have not been able to get a clear, consistent response. for these packages until they are placed in their truck. These packages come to i: closec Irop-off point. They are direct customers of UPS. UPS does not assume responsibilit Under what circumstances would a storeowner be fined, by the Department of Transportation, for violating Hazmat regulations? The UPS Store:#

Page 4Nancy Kasza-Scott Owner Roscoe, IL 61073 4962 Hononegah Road 815.623.5808 Tel 815.623.3388 Fax store3915@theupsstore.com Please take the following into consideration: • We are NOT instructed to inspect the contents of packages, nor are we trained or It is our understanding that hazmat shippers are required to attend training. If so, compensated to perform this function. can companies like UPS, Avon, etc., knowingly provide shipping labels to Can UPS legally require us to accept packages that we have no control over onsumers who they know have no understanding of hazmat procedures If a UPS Store franchisee were fined by the DOT for unknowingly introducing a hazmat package into the system, would the sender (i.e., Avon...) and UPS also be fined? One of our fellow storeowners had a fire damage his store. There is suspicion that the tire was started by a drop-off package. One can assume that this package would also contain hazardous materials, since it was flammable. How would the Department of Transportation rule if this same package caught on fire in a UPS truck, plane or at a hub? Thank you, in advance, for your assistance in this manner. A letter of determination will help us, as storeowners, develop policies and procedures to protect our business from unnecessary liability and to promote proper handling of all packages. If you have questions regarding this request, please contact me at 815-623-5808. Thank you. Nancy Scott The UPS Store:#

Page 5Nancy Kasza-Scott Owner Roscoe, IL 61073 4962 Hononegah Road 815.623.3388 Fax 815.623.5808 Tel store3915@theupsstore.com May 23.2006 Office Of Hazardous Materials Standards S.S. DOT/PHMSA (PHH-10) Director Edward T Mazzullo 400 7* St SW Washington, D.C. 20590-001 Sir; As a small business owner, I am seeking clarification, in written form, for DOT regulations that package and ship items for our customers and, in that capacity, are responsible for following relate to acceptance of and shipping of packages as a retail shipping outlet. Obviously we re-paid packages, which are simply dropped off at our business for later pick-up by a carrier AZMAT guidelines. However, we are required, by contract with UPS, FedEx, etc to accep they are to inspect packages. determination will allow us to go back to the carriers and effect changes in the contractual requirements that put us at risk. staff, attempting to answer questions. However, the carriers have not responded to our concerns, I do not mean to imply that your office has not been helpful. I have received phones call from and, as mentioned, are now trying to force us to open and inspect packages, with out benefit of I would appreciate acknowledgement of this letter and an approximate date a Letter of Determination can be expected Thank You, Nancy Scott The UPS Store™#

Page 6Please take the following into consideration: We are NOT instructed to inspect the contents of packages, nor are we trained or It is our understanding that hazmat shippers are required to attend training. If so, can compensated to perform this function. companies like UPS, Avon, etc., knowingly provide shipping labels to consumers who Can UPS legally require us to accept packages that we have no control over? they know have no understanding of hazmat procedures. If UPS Store franchise were fined by the Do fon. and ups anoetine a hazma ackage into the system, would the sender (1.e., - One of our fellow storeowners had a fire damage his store. There is suspicion that the fire was naterials, since it was flammable. How would the Department of Transportation rule if this sam tarted by a drop-off package. One can assume that this package would also contain hazardou package caught on fire in a UPS truck, plane or at a hub? as storeowners, develop policies and procedures to protect our business from unnecessary liability Thank you, in advance, for your assistance in this manner. A letter of determination will help us, and to promote proper handling of all packages. If you have questions regarding this request, please contact me at 815-623-5808. Thank you. Nancy Scott#

Page 7April 24, 2006 Mr. Edward T Mazzullo S.S. DOT/PHMSA (PHH-10) Director, Office of Hazardous Materials Standards 400 7* St. SW Washington, D.C. 20590-0001 Sir; operated by independent franchisees. We believe that we are exposed to potential liability for We are seeking a formal letter of determination from the DOT. The UPS Stores are owned and fines levied by the DOT for hazardous materials that we may unknowing be introducing into th shipping system. Although we have tried many times, in many different ways, to get an answer from our Franchisor, we have not been able to get a clear, consistent response. Under what circumstances would a storeowner be fined, by the Department of Transportation, for violating Hazmat regulations?#