Interpretation Response #13-0035
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
November 12, 2013
Mr. Jeff Messer
4701 E. 32nd Street
Joplin, MO 64803
Reference No. 13-0035
Dear Mr. Messer:
This is in response to your e-mail and subsequent emails and telephone conversations supplying additional information pertaining to clarification of the Hazardous Materials Regulations (HMR; 49 CFR 171-180) applicable to a transporter relying on information concerning hazardous material shipments, when those shipments are prepared for transportation by the offeror. Specifically, you state that you are an over-the-road commercial carrier that transports trailers loaded and pre-sealed by the offeror. You further state that your drivers do not unseal the trailers and open them to inspect the loads. At times, your drivers have been subject to roadside inspections and required to open the trailers. As a result, the drivers have been cited for not complying with the requirements of § 177.834(a). You are requesting an interpretation to determine if you are correct in your understanding that the enforcement citation should go to the offeror.
To support your understanding, you cite § 171.2(f), pertaining to exercising reasonable care in the reliance on information provided by an offeror or prior carrier; § 171.8, pertaining to the definitions for “person who offers or offeror” and “pre-transportation function,” including “(12) loading, blocking, and bracing a hazardous materials package in a freight container or transport vehicle;” and § 177.800(b), pertaining to a carrier’s responsibility for compliance with Part 177, “Carriage by Highway,” unless specifically provided that another person shall perform a particular duty. Additionally, you state that under § 173.30, pertaining to the loading and unloading of transport vehicles, the responsibility falls on the person loading and unloading the hazardous material to comply with § 177.834, although § 177.834 is a requirement under the Part 177, “Carriage by Highway.” Lastly, you state it is your belief that § 177.801 and not § 177.834 is the correct citation reference for a violation.
Your understanding of pre-transportation function responsibility is partially correct. Although responsibility for compliance with Part 177 of the HMR is inherently placed on the motor carrier, pre-transportation and other regulated functions (e.g., loading, blocking, and bracing of a hazardous materials package into or onto a motor vehicle) can be performed by more than one party. Thus, an offeror and a motor carrier may both be held responsible for non-compliance with applicable requirements of Part 177 of the HMR. However, in the scenario where trailers have Customs Seals or security seals (to prevent theft or contamination), and the driver has no way to inspect the load, the onus for compliance could fall on the shipper/offeror.
Regarding a motor carrier’s responsibility, no person may transport a hazardous material in commerce unless the hazardous material is transported in accordance with applicable requirements of the HMR. In other words, as specified in § 177.800, unless otherwise provided, each carrier, including a connecting carrier, shall perform the duties specified and comply with applicable requirements in Part 177, including, but not limited to, the general package securement requirements specified in § 177.834. However, under § 171.2(f), a motor carrier who transports a hazardous material in commerce may rely on information provided by the offeror of the hazardous material, unless the motor carrier knows or, a reasonable person, acting in the circumstances and exercising reasonable care, would have knowledge that the information provided by the offeror is incorrect. The degree of a motor carrier’s culpability is measured by whether the loading, blocking, or bracing violation could have been avoided by exercising reasonable care. An example of exercising reasonable care could be where the trailer was not sealed until after motor carrier personnel, or someone acting on its behalf, examined the trailer for proper cargo securement.
Regarding an offeror’s responsibility, any person who performs, attempts to perform, or, under the circumstances involved, is contractually or otherwise responsible to perform, any of the regulated transportation functions subject to the HMR is legally responsible under the HMR for their proper performance. Thus, the degree of an offeror’s culpability is also measured by whether the loading, blocking, or bracing violation could have been avoided by exercising reasonable care.
I trust this information is helpful. Please contact this office should you have additional questions.
T. Glenn Foster
Chief, Regulatory Review and Reinvention Branch
Standards and Rulemaking Division
177.800, 177.843, 171.2
|§ 171.2||General requirements|