Despite its frequent use in the Hazardous Materials Regulations (HMR) of the Pipeline and Hazardous Materials Safety Administration (PHMSA) – which itself is one of thirteen administrations and bureaus within the U.S. Department of Transportation (USDOT) – the term “shipper” is not clearly defined in the HMR.  Yet if you offer for shipment a hazardous material (i.e. arrange for a carrier to transport it from your site to its final destination), then your actions characterize you as a shipper and subject you to all the applicable requirements of the HMR.

The purpose of this article is to identify, describe, and clarify the use of the term shipper in the Hazardous Materials Regulations of the USDOT/PHMSA.

In order to codify the long-standing interpretations of the term shipper, USDOT amended the HMR under final rulemaking HM-223A (70 FR 43638, 7.28.05) to add a definition to 49 CFR 171.8  for “person who offers or offeror” that reads:

Person who offers or offeror means:

(1) Any person who does either or both of the following:

(i) Performs, or is responsible for performing, any pre-transportation function required under this subchapter for transportation of the hazardous material in commerce.

(ii) Tenders or makes the hazardous material available to a carrier for transportation in commerce.

(2) A carrier is not an offeror when it performs a function required by this subchapter as a condition of acceptance of a hazardous material for transportation in commerce ( e.g. , reviewing shipping papers, examining packages to ensure that they are in conformance with this subchapter, or preparing shipping documentation for its own use) or when it transfers a hazardous material to another carrier for continued transportation in commerce without performing a pre-transportation function.

This still doesn’t define a shipper.  In this letter of interpretation:  LOI 05-0188, USDOT/PHMSA states, “When the word ‘shipper’ is used, such as in the title of Part 173 – Shippers-General Requirements for Shipments and Packagings that word refers to a person who prepares a shipment for transportation.”  Therefore, a person who performs either of the activities identified in the definition of a Person who offers or offeror (see above) is a shipper for the purposes of the HMR.

A frequent associate of the shipper in the transportation of a hazardous material is the carrier.  Carrier is clearly defined at §171.8 of the HMR:

Carrier means a person who transports passengers or property in commerce by rail car, aircraft, motor vehicle, or vessel.

Question:

The carrier that comes to pick up my HazMat for transportation provides the shipping paper, checks the packages to ensure they’re ready for transport, and performs other functions to get the consignment ready for transport.  That makes them the shipper, right?

Answer:

Wrong.

USDOT/PHMSA foresaw that a shipper may try to avoid its responsibilities by allowing the carrier to perform functions normally reserved for the shippper.  That is why the definition of a person who offers or offeror states explicitly in the second paragraph that a carrier is not an offeror when it performs the routine functions of a carrier prior to acceptance of the hazardous material for transportation.  However, if a person contracts with a carrier to perform all pre-transportation functions as defined in §171.8, then the carrier would also be the offeror and therefore have all the responsibilities assigned to the offeror/shipper in the HMR (LOI 10-0155).

It is possible that the duties of an offeror are performed by more than one party.  For example a generator of a hazardous waste may contract with a waste hauler to perform some of the pre-transportation functions prior to its off-site transportation.  In this scenario, both the hazardous waste generator and the waste hauler are subject to the regulations as offerors (LOI 01-0024).

If you read this far it is likely that in some way you meet the definition of an offeror or the interpretation of a shipper.  If so, then it is also likely you are a HazMat Employer and have HazMat Employees who require HazMat Employee training.  HazMat Employee training – delivered either at your site or via a live webinar – is what I do!