Interpretation Response #CHI-06-0085 ([The UPS Store] [Nancy Kasza-Scott])

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date: 09/11/2007

Company Name: The UPS Store

Individual Name: Nancy Kasza-Scott

Location State: IL Country: US

View the Interpretation Document

Response text:

September 11, 2007

Ms. Nancy Kasza-Scott
Owner
The UPS Store
4962 Hononegah Road
Roscoe, Illinois 61073

Reference No.: 06-0085

Dear Ms. Kasza-Scott:

This responds to your April 24, 2006 letter regarding the applicability of the 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 of the 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 of hazardous materials include a hazard label or 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 of hazardous 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 of the 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-1, Federal Aviation Administration, 800 Independence Ave. SW, Room 300 East, Washington, DC 20591, 202-267-9864, for additional information.

Sincerely,

Joseph Solomey
Assistant Chief Counsel

Regulation Sections