Clarification of incident reporting requirements

This is in response to your July 2, 2008 letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to incident reporting requirements. In your letter, you state that your firm represents a retailer engaged in the transportation, warehousing, and distribution of merchandise.

According to your letter and a conversation with a member of my staff, Glenn Foster, the retail locations are held and operated in the name of one legal entity (Entity A). The motor carrier transporting goods under an operating authority issued by the Federal Motor Carrier Safety Administration (FMCSA) is held and operated in the name of a second legal entity (Entity B). The entity providing warehousing and distribution services is held and operated under a third legal entity (Entity C). The parent company of the three entities is the same. The majority of merchandise transported is either non-hazardous or meets the requirements for consumer commodities shipments.

In your letter, you ask whether Entity C, the warehousing company, is required to submit a Hazardous Materials Incident Report (DOT Form F 5800.1) when it receives a trailer containing undeclared hazardous materials from Entity A, the retailer, and being transported by Entity B, the motor carrier. You also ask whether the response to this scenario changes if Entity B, the motor carrier, has delivered the trailer and departed the premises of Entity C. You further ask whether the response to these scenarios changes because the parent company of the three entities is the same.

As required in § 171.16, each person in physical possession of a hazardous material at the time of an incident specified in § 171.16 occurs during transportation (including loading, unloading, and temporary storage) must submit a Hazardous Materials Incident Report on DOT Form F 5800.1 (01/2004) within 30 days of discovery of the incident. The incidents in § 171.16 include the discovery of an undeclared hazardous material during transportation. As defined in § 171.8, "transportation" means the movement of property and loading, unloading, or storage incidental to that movement. Section 171.8 also defines "storage incidental to movement" to mean storage of a transport vehicle, freight container, or package containing a hazardous material by any person between the time that a carrier takes physical possession of the hazardous material for the purpose of transporting it in commerce until the package containing the hazardous material is physically delivered to the destination indicated on a shipping document, package marking, or other medium, or, in the case of a private motor carrier, between the time that a motor vehicle driver takes physical possession of the hazardous material for the purpose of transporting it in commerce until the driver relinquishes possession of the package at its destination and is no longer responsible for performing functions subject to the HMR with respect to that particular package.

Based on the information you provided in your first scenario, Entity C, the warehousing company discovered an undeclared hazardous material during "transportation," and, therefore, is required to submit a Hazardous Materials Incident Report (DOT Form F 5800.1) within 30 days of discovery of the incident. Under your second scenario, because Entity B, the motor carrier, has delivered the trailer and departed the premises of Entity C, the shipment is no longer in "transportation," and a Hazardous Materials Incident Report is not required to be submitted by Entity B. The response to both scenarios is not affected because the parent company of the three entities is the same.