Interpretation Response #22-0037
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
December 22, 2022
Mr. Mike Stephens
Linde Gas & Equipment Inc.
217 Loren St.
Washington, IL 61571
Reference No. 22-0037
Dear Mr. Stephens:
This letter is in response to your April 15, 2022, email and subsequent telephone conversation with a member of my staff requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to two scenarios pertaining to a shipper's certification on a shipping paper. In both scenarios, you state that you have domestic customers to whom you ship cylinders containing hazardous materials via a common carrier. In most cases, you state that your customers are not trained in accordance with the training requirements specified in § 172.704. In such instances, the common carrier delivers the filled cylinders to your customers, and you work with your customers on the cylinder return process. You state that you offer this service when your customers are unable to perform shipper functions in accordance with the HMR. Finally, you include an example of a document that specifies instructions on package preparation that you provide to your untrained customers, and you describe two scenarios as follows:
You state that your company prepares a bill of lading in accordance with the HMR from a remote location, after you have confirmed through photographic evidence—provided by your customer—that the return package has been prepared in accordance with the HMR. An employee of your company certifies that the material offered for transportation complies with the HMR by signing the "shipper's certification" on the bill of lading as specified by § 172.204(d)(1). Your company subsequently provides the bill of lading to the carrier, or to your customer for forwarding to the carrier. Based on this scenario, you ask whether your company can—acting as the "shipper's agent"—prepare and sign the bill of lading and certify that the shipment complies with the HMR although your company is not physically located at the site of the return shipment.
You state that your company acts as the carrier. When your driver arrives at your customer's location, the driver confirms that the shipment meets all the requirements of the HMR. The driver then creates a bill of lading and signs the "shipper's certification" on the bill of lading before loading and transporting the return cylinders. Based on this scenario, you ask whether your company can—acting as the "shipper's agent"—prepare and sign the bill of lading and certify that the shipment is in compliance with the HMR.
Under both scenarios, the answer to your question is yes. Under the provisions of § 172.204(d)(1), a shipper's certification "must be legibly signed by a principal, officer, partner, or employee of the shipper or his agent." At the direction of your customers or through contractual arrangement, a third party may perform the functions of an offeror—such as signing the certification statement on a shipping paper to certify that hazardous materials are being offered for transportation in compliance with the HMR. The person signing the shipper's certification, whether they be third-party or otherwise, must be properly trained in accordance with §§ 172.700 through 172.704 of the HMR. In addition, the person signing the shipper's certification is certifying that the consignment is properly classified, described, packaged, marked, labeled, and in proper condition for transportation according to the applicable regulations of the Department of Transportation regardless of whom has performed these pre-transportation functions. Any person performing functions of an offeror is responsible for performing those functions in accordance with the HMR.
Please note that in both scenarios, because your company is acting as an agent of your customer, either your company or your customer may be held responsible for non-compliance with the HMR. The degree of regulatory liability is usually determined on a case-by-case basis and is dependent on the facts of the specific situation.
I hope this information is helpful. Please contact us if we can be of further assistance.
T. Glenn Foster
Chief, Regulatory Review and Reinvention Branch
Standards and Rulemaking Division
172.704, 172.204(d)(1), 172.700 thru 172.704
|§ 172.702||Applicability and responsibility for training and testing|