Parcel shippers who ship hazardous (hazmat) materials in domestic or international commerce are subject to a wide variety of rules and regulations governing their shipments. By the very nature of the materials being shipped, the parcel shipper is exposed to higher regulatory and liability risks.
Although true for any shipment, it is critical for parcel shippers shipping hazardous materials that you know and comply with the rules governing your role in the shipment. The first step is to determine whether your package contains hazardous materials. If so, the next step is to determine whether you are an “offeror” when shipping hazmat goods.
The Hazardous Materials Regulations (“HMR”) are issued by the Pipeline and Hazardous Materials Safety Administrator (“PHMSA”) of the U.S. Department of Transportation. They are set forth in the Code of Federal Regulations: 49 C.F.R. Parts 171 et seq. The regulations are divided into four general areas: (1) hazardous materials identification and classification; (2) communications regarding hazardous materials; (3) packaging requirements; and (4) operational rules.
The regulations govern the preparation of shipping documents and the markings, labels, and placards that are used to communicate hazards of materials to both their routine handlers and to emergency responders. They also contain specific training requirements for employers to ensure that each employee dealing with hazardous materials is trained in the HMR.
Confusion over whether a shipper is an “offeror” under the hazmat regulations on a shipment involving multiple parties in the supply chain can arise because the hazmat regulations specifically state that each person who offers hazardous materials for transportation must comply with the applicable regulations. The regulations also state that “there may be more than one offeror of a shipment of hazardous materials.” In other words, although the regulations state that under some circumstances an offeror can rely upon information provided by another offeror, multiple parties to a shipment may each have a responsibility for ensuring compliance with the hazardous materials rules.
Additional confusion can arise because the HMR general definition provisions use the term “shipper” but do not define it. PHMSA advises that the word “shipper” is not used in the HMR regulations in a commercial or contractual sense, but instead refers to a person who prepares a shipment for transportation, which can also be a carrier in some circumstances.
So who is considered an “offeror” under the HMR? It is any person who (1) performs, or is responsible for performing, any pre-transportation function required under the regulations for transportation of the hazardous material; or (2) tenders or makes the hazardous material available to a carrier for transportation.
Tendering or making a hazardous material available to a carrier is fairly clear. However, the definition of a “pre-transportation function” under the HMR is broad and non-exhaustive. It includes criteria such as determining the hazard class of a hazardous material; selecting, filling, securing hazardous material packages; and marking and labeling packages to indicate that they contain hazardous materials.
However, parcel shippers should also be aware that “pre-transportation functions” also include engaging in such activities as preparing a shipping document; reviewing a shipping document to verify compliance with the HMR; or loading, blocking, and bracing a hazardous materials package in a freight container or transport vehicle, as well as other activities.
The determination that a shipment is a hazmat shipment and that as a shipper you are an “offeror” triggers your responsibilities to comply with the HMR regulations. These responsibilities are too many to discuss in detail in this column, but at a minimum they include specific pre-transportation functions that you perform as an “offeror” and, where there are multiple “offerors” on a shipment, exercising reasonable care under the circumstances in relying upon the information provided by other offerors.
Andrew M. Danas is a partner in the Washington, D.C. law firm of Grove, Jaskiewicz and Cobert, LLP. Brent Wm. Primus, J.D., is the CEO of Primus Law Office, P.A. and the Senior Editor of transportlawtexts, inc. Your questions are welcome at brent@primuslawoffice.com or adanas@gjcobert.com.
This article originally appeared in the March/April, 2023 issue of PARCEL.
