{"operation":"document","citation":"CHI-10-005","title":"Meeks, Sheppard, Leo & Pillsbury — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2010-10-06","effective_on":null,"summary":"CHI-10-005 response to Meeks, Sheppard, Leo & Pillsbury concerning 171.8.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-005.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-005.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-10-005","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-10-005.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\n1200 New Jersey Avenue, S.E.,\nPHC-10, Room E26-331\nPipeline and Hazardous\nMaterials Safety Administration\nOffice of\nWashington, D.C. 20590-0001\nChief Counsel\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\nanother carrier for continued transportation in commerce without performing a\npre-transportation function.\n\n<<<PAGE 2>>>\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(1) 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(10) For each person importing a hazardous material into the United States,\nproviding the shipper with timely and complete information as to the HMR\nrequirements that will apply to the transportation of the material within the United\nStates.\n(11) Certifying that a hazardous material is in proper condition for transportation\nin conformance with the requirements of the HMR.\n(12) Loading, blocking, and bracing a hazardous materials package in a freight\ncontainer or transport vehicle.\n(13) 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 3>>>\n\npackage to Company A. What liability could Company A face if 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 performed 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-89-001 are more on point to this scenario.\nAre there any other interpretation letters involving call tags? No.\n\n<<<PAGE 4>>>\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.\nSincerely\nJoul solon\nAssistant Chief Counsel for\nHazardous Materials Safety","truncated":false,"body_characters":5946}