Written on: June 1, 2013 by SprayTM
Occasionally, I will receive a phone call from a rather upset and anxious client who has experienced some difficulty booking cargo with an airline or steamship line. Invariably, there is a difference in interpretation of the Hazardous Materials Regulations (HMR) between the shipper and carrier. After a brief discussion, I am usually able to correct the situation for the shipper and the cargo is moved without further delay.
However, in the past two weeks, I’ve had four phone calls from as many clients who had cargo delayed en route as a result of a misinterpretation of the requirements by the carrier or a regulatory authority. In three of the four cases, the carrier or regulatory agency erred and delayed the cargo unnecessarily. In the last of the four cases, the agency even initiated a civil penalty action against the shipper and issued a Letter of Investigation (LOI), demanding production of additional documents, including Bills of Lading, Safety Data Sheets and training records.
In this most recent case, the regulatory agency charged the “offending party” with a violation of the HMR because the hazard warning label was not placed on the package in a diamond or square-on-point configuration. The LOI stated that the “offending party…was found to have the class 9 label improperly placed on the box. It was placed at a 90 degree angle instead of a 45 degree angle as required….”
However, it is interesting to note that the very same agency issued a Letter of Interpretation several years prior which very clearly states that “…while it is the intent of these regulations that a label be oriented square-on-point when possible, the requirements in 49 CFR…and the…ICAO Technical Instructions do not prohibit the placement of hazard warning labels in an orientation where the square-on-point is located with its flat sides parallel to the package.”
It appears that even the regulatory agents are having difficulty interpreting the HMR!
Interpretations Library
In cases where there is a difference of interpretation, a frustrated shipment or even a civil penalty action, I have found it most useful to consult the U.S. Dept. of Transportation’s Pipeline & Hazardous Materials Safety Administration (PHMSA) website www.phmsa.dot.gov/hazmat/regs/interps to research their extensive library of interpretations dating as far back as 1995.
There are several ways to conduct a search within this library: by date, by regulation or by keyword. The date search is not very useful (to be honest), but the regulation and keyword search are quite helpful. Of course, the regulation search function assumes that the user is familiar with the regulatory requirements and can recite both chapter and verse. The keyword search function will generate a list of links and provide a synopsis of each interpretation letter containing the keywords or phrase. A simple Boolean search will narrow the list of possible hits from 2,000 or more to a few dozen or less.
For example, I conducted a search in the last case using the terms “square on point” (without quotes) and the engine generated a list of 1,817 hits. I narrowed the search criteria by putting the term “square-on-point” in quotes (and included the hyphens) and produced 71 results. I then crafted a Boolean search using the following terms “ square-on-point” and “label” and generated a more manageable list of 28 results.
The DOT’s Interpretations Library is an excellent tool and can resolve some of the more difficult questions that shippers, carriers and forwarders may have.
Some Surprises
Of course, you may also be surprised while doing your research using this valuable resource.
For example, there is a little known interpretation of 49 CFR §172.602(b)((3) that requires emergency response information to be provided in a manner that is related to the information on a shipping paper. Shippers often provide only an emergency response telephone number on the shipping paper, thereby exposing them to a potential civil penalty for not providing the emergency response information as required by 49 CFR §172.602(a) and (b).
In their Letter of Interpretation, 12¬0259, PHMSA states that it “… has consistently held that the requirements of §172.602(a)(1) and §172.602(b)(3) are not met solely by entering the Guide page of the Emergency Response Guidebook (ERG) on the shipping paper in association with the listing of the hazardous material and attaching the Guide page to the shipping paper. PHMSA has stated that when an ERG Guide page, and not the entire ERG, is used, the Guide page must include the basic description and if applicable, the technical name of the hazardous material. PHMSA has further stated that if the entire ERG, not just an ERG Guide page, is present on the transport vehicle, the requirements of §172.602(a)(1) and§ 172.602(b)(3) are satisfied…Accordingly, if the emergency response information is provided in an ERG Guide page attached to the shipping paper, we require that the Guide page include the basic description and if applicable, the technical name of the hazardous material.”
Recommendations
Companies are strongly encourage to review the DOT’s Interpretations Library to find answers to some of their more difficult questions, or if, as in the case of four of my clients this month, shipments are delayed or frustrated.
In addition, companies are advised to also seek advice and counsel from the DOT’s HazMat InfoCenter at +1 (800)467-4922. Those not comfortable providing name and telephone number to the DOT may contact ShipMate at +1 (310) 370-3600. SPRAY
