There is much confusion concerning who an “offeror” is under the Pipeline and Hazardous Materials Safety Administrations (PHMSA) Hazardous Materials Regulations (HMRs). PHMSA has numerous interpretation letters that attempt to clarify this issue for individual scenarios. A recent query led to a warning by PHMSA about the possibility of “multiple” offerors. Let’s take a look.
 |
Here’s the Scenario
A producer of crude oil sells some oil to a purchaser. Under a contract between the producer and the purchaser, ownership of the oil passes to the purchaser as it flows through the valve on the producer’s storage tank. The purchaser loaded the oil from the tank to the transport vehicle, sampled and tested the oil, and prepared the shipping papers.
The question: Is the purchaser the offeror?
PHMSA Says …
PHMSA officials said yes, the purchaser is an offeror. Note, though, the difference between the question and the answer. The query was whether the purchaser is the offeror. The answer is that the purchaser is an offeror. PHMSA officials went on to point out that there may be multiple offerors during transportation.
PHMSA’s HMRs define an offeror as anyone who:
- Performs, or is responsible for performing, any pretransportation functions for the transportation of hazardous materials in commerce; or
- Tenders or makes the hazardous material available to a carrier for transportation in commerce.
How to Avoid Being an Offeror
If you want to avoid being subject to Department of Transportation’s (DOT) regulations for transporting hazardous materials in commerce, you must be careful that you and your employees do not perform any of the functions related to these regulations.
As noted, there may be more than one offeror of a shipment of hazardous materials. Each offeror is responsible only for the specific pretransportation functions that he or she performs or is required to perform.
Note that key to the definition is whether you perform any “pretransportation functions.”
Tip: One way to avoid becoming an offeror is to contract with a carrier to perform all pretransportation functions related to your shipment. Just make sure that your employees avoid the temptation to “help out” with any of the pretransportation functions.
Pretransportation Functions
These are the pretransportation functions for preparing hazardous materials for transportation:
- Determining the hazard class of a hazardous material
- Selecting the packaging for a regulated hazardous material
- Filling a hazardous materials package
- Securing a closure on a filled or partially filled hazardous materials package
- Marking or labeling packages that contain hazardous materials
- Providing and maintaining emergency response information
- Preparing and reviewing shipping papers to verify compliance with the hazardous materials regulations or their international equivalents
- If you are importing hazardous materials into the United States, providing the shipper with timely and complete information as to the HMR requirements that will apply to the transportation of the material within the United States
- Certifying that hazardous materials are in proper condition for transportation
- Loading, blocking, and bracing a hazardous materials package in a freight container or transport vehicle and segregating the package from incompatible cargo
- Selecting and affixing hazardous materials markings or placards on vehicles or packages, or providing placards to a carrier
Takeaway
If you or any of your employees perform even one of these pretransportation functions, you become an offeror, with all the associated headaches and liabilities. So, if one of your employees wants to “lend a hand” with say, loading a hazmat package on a truck, tell him or her to “back away.”