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By Anthony Affissio
In the United States Hazardous Materials Regulations, responsibility does not necessarily follow a job title or a traditional description of who the shipper is. Instead, accountability is applied to persons according to the functions they perform, or are required to perform, in preparing and arranging hazardous materials for transportation.
For freight forwarders, this distinction is important. Their involvement in completing Air Waybills, arranging transportation, reviewing documentation and tendering cargo can bring specific responsibilities under the Hazardous Materials Regulations, commonly referred to as the HMR.
Responsibility Follows the Function
49 CFR 171.1 establishes broad applicability and includes the principle that the law authorises the Secretary to apply the regulations to persons who cause hazardous materials to be transported in commerce.
A freight forwarder performs functions that enable a shipment to move. Without those functions to arrange transportation, the shipment may not be transported. On that basis, the freight forwarder can be part of the process that causes the hazardous material to be transported.
This broad applicability is refined further in 49 CFR 171.2, which recognises that there may be more than one offeror of a hazardous materials shipment.
The regulation states that each offeror is responsible for complying with the requirements of the HMR in relation to any pretransportation function that it performs or is required to perform. Importantly, an offeror is responsible only for those specific functions.
The regulation also allows an offeror to rely on information provided by another offeror unless the person knows, or a reasonable person exercising reasonable care in the circumstances would know, that the information is incorrect.
The Importance of Reasonable Care
The concept of reasonable care is central to understanding this responsibility.
Freight forwarders are expected to have expertise in transportation and logistics. They commonly complete Air Waybills, arrange delivery and transportation, perform customs related activities and meet security requirements.
Those functions require an appropriate understanding of the cargo being handled.
When dangerous goods are involved, reasonable care therefore becomes particularly important. The question is not simply whether another party supplied the information. The question is also whether the forwarder performing a regulated function had reason to recognise that the information was incomplete or incorrect.
Air Waybills and Pretransportation Functions
Air Waybills are particularly relevant because they contain a dangerous goods certification within the signature block confirming compliance with applicable regulations.
Certification is identified as a pretransportation function in 49 CFR 171.1(b)(11).
Whether cargo has been declared as dangerous goods or is presented without a dangerous goods declaration, the forwarder still needs to exercise reasonable care when performing the functions for which it is responsible.
For declared dangerous goods shipments, this may include reviewing the shipping paper to verify compliance. Reviewing a shipping paper is another pretransportation function identified in 49 CFR 171.1(b)(9).
These provisions demonstrate why the party physically preparing the dangerous goods is not necessarily the only party with responsibility under the HMR.
The HMR Uses Offeror, Not Shipper
The HMR does not rely on the word “shipper” to establish this responsibility. Instead, it uses the terms “offeror” and “person who offers”.
49 CFR 171.8 defines a person who offers or an offeror as a person who does either or both of the following:
- Performs, or is responsible for performing, a pretransportation function required under the HMR for transportation of hazardous material in commerce.
- Tenders or makes hazardous material available to a carrier for transportation in commerce.
A freight forwarder completing the Air Waybill and arranging delivery may therefore meet the second element of this definition, in addition to any pretransportation functions that it performs or is required to perform.
This reinforces the broader principle running through the HMR: responsibility is determined by what a person does, not simply by the title assigned to that person in the logistics chain.
Responsibility for Imported Hazardous Materials
The HMR also assigns responsibilities in relation to hazardous materials imported into the United States.
Subpart C of Part 171 addresses the authorisation and requirements for the use of international transport standards and regulations.
49 CFR 171.22(f)(1) requires, except for qualifying shipments entering from Canada under 49 CFR 171.12, each person importing a hazardous material into the United States to provide the shipper and the forwarding agent at the place of entry with timely and complete written information concerning the applicable HMR requirements for that shipment.
Depending on the functions performed, this responsibility could apply to the consignee or an agent acting on its behalf, such as a Customs House Broker or freight forwarder.
Again, the relevant question is the function being performed.
Freight Forwarders Are Expressly Within Part 175
Part 175 of 49 CFR addresses carriage by aircraft.
49 CFR 175.1(b)(1), which establishes the purpose, scope and applicability of Part 175, expressly identifies a range of parties including air carriers, indirect air carriers and freight forwarders, together with their flight and nonflight employees, agents, subsidiary personnel and contract personnel involved in functions such as cargo acceptance, handling, loading and unloading.
The inclusion of freight forwarders is significant. It reinforces that their responsibilities under the HMR cannot be determined simply by assuming the original goods owner is the shipper and therefore carries all regulatory responsibility.
What This Means in Practice
For freight forwarders handling hazardous materials in the United States, responsibility needs to be considered function by function.
Completing an Air Waybill, arranging transportation, tendering cargo, reviewing shipping documentation, importing hazardous materials or performing other regulated pretransportation activities can each carry obligations under the HMR.
The existence of another shipper or offeror does not automatically remove those responsibilities.
At the same time, the HMR does not make every participant responsible for every action taken by every other party. The framework is more specific than that. Each offeror is responsible for the functions it performs or is required to perform, subject to the reasonable care standard when relying on information supplied by others.
Final Reflection
The United States regulatory framework places considerable importance on actions rather than titles.
For freight forwarders, that makes understanding the boundaries of their own functions essential. The more active their role in documenting, arranging, reviewing and tendering hazardous materials for transportation, the more important it becomes to understand which HMR responsibilities attach to those activities.
The practical lesson is that responsibility within the dangerous goods supply chain cannot always be determined by asking who is called the shipper.
Under 49 CFR, the more useful question may be: what function did each person actually perform?