{"operation":"document","citation":"03-0118","title":"Waste Technology Services, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2003-09-11","effective_on":null,"summary":"03-0118 response to Waste Technology Services, Inc. concerning 172.800.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0118.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0118.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-03-0118","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2003/030118.pdf","body":"<<<PAGE 1>>>\n\nof Transportation\nU.S. Department\n400 Seventh St., S.W.\nWashington, D.C. 20590\nResearch and\nSpeciai Programs\nAdministration\nSEP 1 1 2003\nMr. Ted Nebrich\nRef. No. 03-0118\nWaste Technology Services, Inc.\n640 Park Place\nNiagara Falls, New York 14301\nDear Mr. Nebrich:\nThis is in response to your letter dated May 6, 2003 regarding the applicability of the security\nrequirements under Part 172, Subpart I of the Hazardous Materials Regulations (HMR; 49 CFR Parts\n171-180). Specifically, you ask if environmental consultants who prepare shipping papers for their\nclients must create a security plan and if so can a single security plan be used for more than one client\nsite.\nSecurity plans apply to each person who offers for transportation in commerce or transports in\ncommerce a hazardous material listed in paragraph (b)(1) - (7) of § 172.800. The term \"offeror\" is not\ndefined in the HMR; however, generally a person who performs one or more functions of an offeror is\nconsidered an offeror for HMR purposes. Offeror functions are functions performed to prepare a\nshipment for transportation (i.e., selection of a proper shipping name, preparation of shipping papers,\nmarking or labeling a package, etc.). Therefore, by creating shipping papers for your clients you are an\nofferor and when dealing with materials in a quantity provided in § 172.800(b)(I) - (7) you must\ndevelop and adhere to a security plan.\nA security plan should cover the activities undertaken by an offeror to prepare shipments for\ntransportation and should consider the nature of those activities. We do not expect shippers or carriers\nto develop security plans for activities that they do not perform or for materials to which they do not\nhave access. A person who performs certain offeror functions, for example, but does not actually have\naccess to the hazmat to which the function applies need not address unauthorized access issues in his\nsecurity plan. Similarly, a person who performs certain offeror functions, but is not involved with\ndecisions concerning the actual transportation of the hazardous material need not address en route\nsecurity issues in the security plan. The security plan requirement is flexible, permitting shippers and\ncarriers to adapt security plan requirements to their specific circumstances. If the offeror functions you\nperform include only preparation of shipping papers, then your security plan should cover that function\nto the extent necessary. For example, if you prepare shipping papers, but do not have access to\nsensitive shipping information, such as shipping dates and routes, then your security plan may be\nminimal. However, if in the course of preparing shipping papers, you have access to information\n172.800\n030118\n\n<<<PAGE 2>>>\n\nrelated to the security of the shipment during transportation, then you must have a security plan to\naddress those security issues. Provided the security plan fulfills the requirements of § 172.802, you\nmay utilize the same or a similar security plan for different shipments.\nI hope this satisfies your request.\nSincerely,\nSusan Gorsky\nSenior Transportation Regulations Specialist\nOffice of Hazardous Materials Standards\n\n<<<PAGE 3>>>\n\nwIs\nGale\n$172.800\nWASTE TECHNOLOGY SERVICES INC.\nSecurity Plans\nMay 6, 2003\n03-0118\nMr. Edward Mazzullo\nDirector of Office of Hazardous Material Standards\nUS Department of Transportation - RSPA (DHM - 10)\n400 Seventh Street, S.W.\nWashington, DC 20590-0001\nDear Mr. Mazzullo:\nrequirements (i.e., security plans) for offerors of hazardous materials as it pertains to\nI am writing to request an interpretation regarding the applicability of the security\nFR 14510) discusses the development and implementation of security plans for shippers\nenvironmental consultants such as us. The March 25, 2003 Federal Register\nand carriers of certain hazardous materials. It also addresses the training requirements for\nhazmat employees of companies required to have a security plan. According to the\npreamble, the trigger for applicability is the registration requirements in 49 CFR part 107\nor being an offeror or transporter of selected agents and toxins regulated by the CDC.\nHowever, the new codified 49 CFR Part 172, Subpart I - Security Plans\"' only trigger for\napplicability is ... each person who offers for transportation in commerce or transports in\ncommerce one or more of the following hazardous materials... There is no mention of the\n49 CFR 107 registration criteria. We are strictly environmental consultants** and\nregister only because the Instructions & Form DOT F 5800.2 indicates an offeror is a\nperson, among other things, prepares shipping papers and determines the hazard class of a\nhazardous material. Since we do not perform a majority of the functions outlined in the\nare we required under the new 49 CFR Part 172, Subpart I to develop a security plan?\nForm DOT F 5000.2 as offerors and we clearly are not the shipper of hazardous materials,\nYou can see our dilemma. Are we required to develop a security plan for each one of our\nclient's sites we are involved with? In some cases we have not even seen their site; we\nonly prepare shipping papers for them.\n** Our primary and in most instances our only function includes preparing shipping\npapers (including designating DOT shipping names and hazard classes) and\narranging for hazardous materials pickups. There are some instances were we\nmay supervise the transfer of hazardous material to a carrier.\nCorporate Office: 640 Park Place, Niagara Falls, New York 14301\nTelephone 716-282-4100 • Fax 716-282-6986\n2025 E. Main Street, Suite 101 • Richmond, VA 23223 • Telephone (804) 649-0700 • Fax (804) 649-2360\n6 Forest Park Drive • Farmington, CT 06032 • Telephone (860) 677-1146 • Fax (860) 677-4979\n103 Paradise Avenue • Baltimore, Maryland 21228 • Telephone (410) 719-9147 • Fax (410) 719-9149\n• www.wtsonline.com\n\n<<<PAGE 4>>>\n\nMay 6, 2003\nMr. Edward Mazzullo\nPage 2\nAiso we would appreciate your interpretation on whether or not we would be required\nto continue our registration based on the type of service we provide for our clients. If we\nfini\ndo not fit the criteria of an offeror regarding the Hazardous Materials Certificate of\nRegistration program, the security plan requirements become a moot point I would guess.\nIf you have any further questions, please do not hesitate to contact me.\nVery truly yours,\nWASTE TECHNOLOGY SERVICES, INC.\nT.. Kelly\nTechnical Director\nT.L. Nebrich, Jr., CHMM, QEP, REM\nTLN/tIn","truncated":false,"body_characters":6478}