Tatro Tekosky Sadwick LLP — Hazardous Materials Safety Interpretation

Page 1U.S. Department of Transportation SEP 21 2007 00 New Jersey Avenue, ashington, D.C. 205 ipeline and Hazardou Administration laterials Safet Mr. Steve R. Tekosky Ref. No. 07-0116 660 S. Figueroa Street, Suite 1450 Tatro Tekosky Sadwick LLP Los Angeles, CA 90017 Dear Mr. Tekosky: This responds to your June 11, 2007 letter requesting clarification of requirements applicable to pre-transportation functions under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask whether registration, security planning, and training requirements in the HMR apply to a third-party consultant providing guidance and advice on the performance of pre-transportation functions. hazardous material in commerce. The HMR define "person who offers" or "offeror" to mean Generally, the HMR apply to any person who offers for transportation or transports a any person who performs or is responsible for performing a pre-transportation function tenders or makes a hazardous material available to a carrier for transportation in commerce required under the HIMR for transportation of a hazardous material in commerce or who in accordance with the HMR (see § 171.2(a)). Pre-transportation functions are functions (see § 171.8). Further, each person who performs a function covered by the HMR must do so specified in the HMR that are required to assure the safe transportation of a hazardous material in commerce and include, but are not limited to: (1) Determining the hazard class of a hazardous material. (2) Selecting a hazardous materials packaging. (3) Filling a hazardous materials packaging, including a bulk packaging. (4) Securing a closure on a filled or partially filled hazardous materials package or (5) Marking a package to indicate that it contains a hazardous material. container or on a package or container containing a residue of a hazardous material. (6) Labeling a package to indicate that it contains a hazardous material. equivalents. 1) Certifying that a hazardous material is in proper condition for transportation informance with the reauirements of the HM 171.1 107.601 112.800 070116#

Page 2(12) Loading, blocking, and bracing a hazardous materials package in a freight container or transport vehicle. (13) Segregating a hazardous materials package in a freight container or transport vehicle from incompatible cargo. vehicle to indicate that it contains a hazardous material (§ 171.1(b)). (14) Selecting, providing, or affixing placards for a freight container or transport 107.601(a). The security plan requirements in Subpart I of Part 172 of the HMR apply to any offers for transportation or transports one or more of the hazardous materials listed in § A third-party consultant who performs pre-transportation functions on behalf of, as an agent of, or under contract to a shipper, carrier, or other entity meets the definition of a "person who offers" or "offeror" and must perform those functions in accordance with all applicable HMR requirements. A third-party consultant who performs or contracts to perform pre- transportation functions such as determining the hazard class of a material, selecting an appropriate packaging, preparing a shipping paper, providing and maintaining emergency vehicle, or performing any other pre-transportation function related to the hazardous response information, selecting appropriate placards for a freight container or transport materials listed in § 107.601(a) is subject to the registration requirements. A third-party consultant who performs or contracts to perform pre-transportation functions preparing a shipping paper, providing and maintaining emergency response information, such as determining the hazard class of a material, selecting an appropriate packaging, selecting appropriate placards for a freight container or transport vehicle, or performing any other pre-transportation function related to the hazardous materials listed in § 172.800(b) is apply to any person who performs or is responsible for performing a pre-transportation also subject to the security plan requirements. Furthermore, the security plan requirements function, even if that person does not handle, store, maintain, control, or transport the hazardous material. In addition to personnel security, the security plan must address unauthorized access and en route security (see § 172.802(a)) to the extent necessary to demonstrate that each aspect of security has been considered. The third-party consultant and its employees and staff who perform pre-transportation could be covered by the contracting entity's security plan and registration, if the contracting functions on behalf of, as an agent for, or under contract to a shipper, carrier, or other entity entity has not accepted full responsibility for all functions performed by the consultant (or if entity has accepted full responsibility for the actions of the consultant. If the contracting the terms are unclear), then the consultant must independently comply with the registration and security plan requirements, as applicable.#

Page 3Part 172 of the HMR. Generally, a "hazmat employee" is any person who is employed on a All hazmat employees must be trained in accordance with the requirements in Subpart H of full-time, part-time, or temporary basis and who in the course of such employment directly affects hazardous materials safety. (See § 171.8 for the complete definitions of "hazmat employee" and "hazmat employer.") A third-party consultant or its employees or staff who perform instructional or advisory functions are not hazmat employees and, therefore, are not subject to the training requirements. For those who are not self-employed, a "hazmat employer" is one who employs a hazmat materials to be transported in commerce; or (3) designs, manufactures, inspects, repairs, or employee and who (1) transports a hazardous material in commerce; (2) causes hazardous tests packaging that is marked, sold or certified as qualified for use in transporting hazardous hazardous materials to be transported in commerce" includes one who performs the functions materials in commerce. While not specifically defined in the HMR, a person who "causes of a "person who offers" or "offeror." Functions of a "person who offers" or "offeror" Therefore, a company that performs these functions is a hazmat employer and is subject to include, but are not limited to the functions (i.e., pre-transportation functions) listed above. the training requirements. A third-party consultant and its employees or staff who perform pre-transportation functions on behalf of, as an agent for, or under contract to a hazmat employer must be trained in accordance with applicable HMR requirements. Additionally, a third-party consultant and its employees and staff who perform pre-transportation functions related to the hazardous materials listed in § 172.800(b) are subject to the in-depth security training requirements (§ 172.704(a)(5)) even though the third-party consultant may not necessarily develop his or her own security plan. It is the responsibility of the hazmat training must be determined between the third-party consultant and its clients). employer to ensure that all hazmat employees are trained. The issue of who performs the I hope this information is helpful. Please contact us if you require additional assistance. Sincerely, Sure Susan Gorsky Regulations Officer Office of Hazardous Materials Standards#

Page 4Der Kinderen $171.1 TATRO TEKOSKY SADWICK LLP • ATTORNEYS AT LAW Applicabiliti 07-0118 660 S. FIGUEROA STREET, SUITE 1450 Los ANGELES, CALIFORNIA 90017 TELEPHONE (213) 225-7171 FACSIMILE (213) 225-7151 STEVEN R. TEKOSKY, Esc STEVETEKOSKY@TTSMLAW.COM (213) 225-7150 June 11, 2007 Mr. Edward Mazzullo Director of the Office of Hazardous Materials Standards Pipeline and Hazardous Materials Safety Administration PHH 10 1200 New Jersey Avenue S.E. Washington, D.C. 20590 Re: Interpretation of HazMat Regulations Dear Mr. Mazzullo: We write to seek interpretation and clarification of certain pre-transportation regulations functions. The foregoing notwithstanding, the consultant will not at any time physically handle, A. Questions Posed Under the various circumstances set forth in Section B of this letter, we wish to know whether such a third-party consultant is required to: 1. Create a Security Plan and train/certify its personnel on that security plan, despite the fact ianitorial supplies in quantities normally found in comparably-sized offices) and despite that the consultant's facilityies) do not contain hazmat (other than standard office and the fact that no employee, agent, contractor or subcontractor of the consultant actually See definition of "pre-transportation function" at 49 CFR section 171.8.#

Page 5Mr. Edward Mazzullo TATRO TEKOSKY SADWICK LLP • June 11, 2007 Page 2 ATTORNEYS AT LAW handles hazmat at any location; 2. Register with the DOT as "a person who offers hazardous materials;" 3. Provide Hazmat employee training, testing and certification. B. Assumed Facts and Circumstances It is our understanding, consistent with 70 Federal Register 20018 (April 15, 2005), that in order -- generally instructs hazmat offerors and transporters regarding the proper ways "to prepare hazardous materials for transportation;" -- reviews hazmat offerors' and/or transporters' procedures for preparing hazmat for transportation and offers findings/suggestions regarding such operations as well as providing general guidance as to future operations; labeling, marking, shipping paper completion and placarding requirements; -- offers training in non-bulk hazmat shipping, including shipping classification, packaging, -- identifies hazmat contractors and carriers on behalf of hazmat offerors and, if directed by the information among those offerors, contractors and carriers;? and offeror to do so, facilitates retention of the contractors and carriers as well as communication of -- provides advice regarding proper emergency response in the event of hazmat spills at the and may involve contacting an appropriate ER firm and coordinating the response through This activity may include dispatch of a professional Emergency Response ("ER") company, transportation of the resulting hazardous waste. All classification, packaging, marking, labeling, shipping paper preparation, and transport will be managed either by the generator or the ER contractor. Potential DOT 5800.1 reporting notification would not be performed by the reporting of a hazardous substance spill greater than a Reportable Quantity may be performed by consultant, but rather by the generator or the ER company. Please note, however, that the the consultant. In addition the consultant may submit reports (where appropriate) based on the requirements of 49 CFR 171.15 (closure of a major roadway > 1 hr. or spill of infectious materials, etc.) or if a spill requires an immediate report to the National Response Center (including spills that occur in transport).#

Page 6Mr. Edward Mazzullo June 11, 2007 TATRO TEKOSKY SADWICK LLP ATTORNEYS AT LAW Page 3 hazmat offerors' sites and during transportation, including guidance regarding reporting requirements. re-transportation functions listed, in pertinent part, under 49 CFR section 171.8, although the Additionally, from time to time, the consultant will perform some or all of the followin consultant does not physically handle, mark, label, store, maintain, control or transport hazmat: (1) Determining the hazard class of a hazardous material; (2) Selecting a hazardous materials packaging; ... (7) Preparing a shipping paper; (8) Providing and maintaining emergency response information; (9) Reviewing a shipping paper to verify compliance with the HMR or international equivalents; that it contains a hazardous material.3 Selecting proper placards for a freight container or transport vehicle to indicate The third-party consultant does not perform the pre-transportation functions of transportation functions" (5) and (6) at 49 CFR section 171.8. On occasion, however, the "[m]arking [or labeling] a package to indicate that it contains a hazardous material." See "pre- consultant makes a determination of the proper marking and/or labeling of a package to indicate that it contains a hazardous material. C. Requests for Interpretation Based on information from Ms. Susan Gorsky of your agency that has been communicated orally to us by her staff, we understand that the HazMat regulations do not apply and are not implicated where the third-party contractor provides advice and guidance alone to its clients and where the third-party contractor does not make any binding determinations governing any pre-transportation or transportation functions. We also understand based on information from Ms. Gorsky that the HazMat security plan regulations [49 CFR section 172.800 et seq. and control or transport hazardous materials but who do engage in activities such as filling out a 172.704(a)(5)] are inapplicable to third-party contractors who do not handle, store, maintain, shipping paper or making a placarding determination in connection with the transportation by 3 See 49 CFR section 171.8.#

Page 7• Mr. Edward Mazzullo TATRO TEKOSKY SADWICK LLP • June 11, 2007 Page 4 ATTORNEYS AT LAW others of hazardous materials. Please confirm our understanding regarding both of these situations. (a) In addition to seeking your confirmation of Ms. Gorsky's interpretations as set forth bove, we have an additional request for clarification that we did not discuss with Ms. Gorsky' taff. The logical implication of the information imparted by Ms. Gorsky's staff regarding th determinations, leads us to understand -- and seek your clarification -- that, similarly, the security control or transport hazardous materials, but who do fill out shipping papers or make placarding haarlous material, bot mely ly pee um de nor hare of the oming acts: 1) determine he provide and maintain emergency response information; and v) review a shipping paper to verify compliance with the HMR or international equivalents. (b) Ms. Gorsky's staff also suggested that, irrespective of whether or not one actually sentin 171.8'S delintain of controlled or offers ised hazard us there tal an anar us elerider ection 171.8's definition of " interpretation. regulation's registration requirement. See 49 CFR section 171.2(c). Please confirm this (c) Finally, we understand from Ms. Gorsky's staff that except for the in-depth security applicable to all hazmat employees.* Please confirm this understanding. 4 The definition of "hazmat employee" includes anyone employed by a hazmat employer who: transports hazardous materials in commerce; causes hazardous materials to be transported in commerce; designs, manufactures, inspects, repairs or tests containers or packaging that is in commerce. Id. As the elements of "transporting hazardous materials," "causing the marked, certified, or sold by that person as qualified for use in transporting hazardous materials transportation of hazardous materials" and "person who offers" are separate terms, the fact that section 171.8's definition of hazmat employer references transporting hazardous materials ((1)(i)) and causing hazardous materials to be transported ((1)(ii)), while omitting "person who offers" might suggest that an employer who falls within the definition of a "person who offers" in the context of section 171.8, but who does not transport, or cause the transportation of, hazardous materials, is not a hazmat employer. As a hazmat employee, by definition, works for#

Page 8Mr. Edward Mazzullo TATRO TEKOSKY SADWICK LLP June 11, 2007 Page 5 ATTORNEYS AT LAW Are employees who work for an employer who is a person who "offers" by virtue of that Additionally, as suggested by footnote 4, we seek clarification of the following question employer's performance of pre-transportation functions hazmat employees requiring Subpart H training if such an employer is not a hazmat employer because the employer does not transport or cause the transportation of hazardous materials? hazmat security plan, registration and/or training requirements apply in the situations set forth in Given these assumed facts, we request your guidance and interpretation as to whether the this letter in Sections C.1, C.2(a), (b) and (c), and C.3. Thank you for your consideration of this request. Very truly your: a hazmat employer, if an employee is a person who "offers," but whose employer is not a hazmat employer (because the employer neither transports, nor causes the transportation of, hazardous requirements are prescribed for "training hazmat employees" (section 172.700(a), (b); materials), such an employee cannot be a hazmat employee. Finally, as the Subpart H Training such training requirements are inapplicable to such an employee -- even if such an employee 172.702(a)(b); 172.704(a)), it follows that if one is, by definition, not a hazmat employee, then engages is certain pre-transportation functions.#