{"operation":"document","citation":"07-0116","title":"Tatro Tekosky Sadwick LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2007-09-21","effective_on":null,"summary":"07-0116 response to Tatro Tekosky Sadwick LLP concerning 171.1, 172.800.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-07-0116.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-07-0116.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-07-0116","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2007/070116.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nSEP 21 2007\n00 New Jersey Avenue,\nashington, D.C. 205\nipeline and Hazardou\nAdministration\nlaterials Safet\nMr. Steve R. Tekosky\nRef. No. 07-0116\n660 S. Figueroa Street, Suite 1450\nTatro Tekosky Sadwick LLP\nLos Angeles, CA 90017\nDear Mr. Tekosky:\nThis responds to your June 11, 2007 letter requesting clarification of requirements applicable\nto pre-transportation functions under the Hazardous Materials Regulations (HMR; 49 CFR\nParts 171-180). Specifically, you ask whether registration, security planning, and training\nrequirements in the HMR apply to a third-party consultant providing guidance and advice on\nthe performance of pre-transportation functions.\nhazardous material in commerce. The HMR define \"person who offers\" or \"offeror\" to mean\nGenerally, the HMR apply to any person who offers for transportation or transports a\nany person who performs or is responsible for performing a pre-transportation function\ntenders or makes a hazardous material available to a carrier for transportation in commerce\nrequired under the HIMR for transportation of a hazardous material in commerce or who\nin accordance with the HMR (see § 171.2(a)). Pre-transportation functions are functions\n(see § 171.8). Further, each person who performs a function covered by the HMR must do so\nspecified in the HMR that are required to assure the safe transportation of a hazardous\nmaterial in commerce and include, but are not limited to:\n(1) Determining the hazard class of a hazardous material.\n(2) Selecting a hazardous materials packaging.\n(3) Filling a hazardous materials packaging, including a bulk packaging.\n(4) Securing a closure on a filled or partially filled hazardous materials package or\n(5) Marking a package to indicate that it contains a hazardous material.\ncontainer or on a package or container containing a residue of a hazardous material.\n(6) Labeling a package to indicate that it contains a hazardous material.\nequivalents.\n1) Certifying that a hazardous material is in proper condition for transportation\ninformance with the reauirements of the HM\n171.1\n107.601\n112.800\n070116\n\n<<<PAGE 2>>>\n\n(12) Loading, blocking, and bracing a hazardous materials package in a freight\ncontainer or transport vehicle.\n(13) Segregating a hazardous materials package in a freight container or transport\nvehicle from incompatible cargo.\nvehicle to indicate that it contains a hazardous material (§ 171.1(b)).\n(14) Selecting, providing, or affixing placards for a freight container or transport\n107.601(a). The security plan requirements in Subpart I of Part 172 of the HMR apply to any\noffers for transportation or transports one or more of the hazardous materials listed in §\nA third-party consultant who performs pre-transportation functions on behalf of, as an agent\nof, or under contract to a shipper, carrier, or other entity meets the definition of a \"person\nwho offers\" or \"offeror\" and must perform those functions in accordance with all applicable\nHMR requirements. A third-party consultant who performs or contracts to perform pre-\ntransportation functions such as determining the hazard class of a material, selecting an\nappropriate packaging, preparing a shipping paper, providing and maintaining emergency\nvehicle, or performing any other pre-transportation function related to the hazardous\nresponse information, selecting appropriate placards for a freight container or transport\nmaterials listed in § 107.601(a) is subject to the registration requirements.\nA third-party consultant who performs or contracts to perform pre-transportation functions\npreparing a shipping paper, providing and maintaining emergency response information,\nsuch as determining the hazard class of a material, selecting an appropriate packaging,\nselecting appropriate placards for a freight container or transport vehicle, or performing any\nother pre-transportation function related to the hazardous materials listed in § 172.800(b) is\napply to any person who performs or is responsible for performing a pre-transportation\nalso subject to the security plan requirements. Furthermore, the security plan requirements\nfunction, even if that person does not handle, store, maintain, control, or transport the\nhazardous material. In addition to personnel security, the security plan must address\nunauthorized access and en route security (see § 172.802(a)) to the extent necessary to\ndemonstrate that each aspect of security has been considered.\nThe third-party consultant and its employees and staff who perform pre-transportation\ncould be covered by the contracting entity's security plan and registration, if the contracting\nfunctions on behalf of, as an agent for, or under contract to a shipper, carrier, or other entity\nentity has not accepted full responsibility for all functions performed by the consultant (or if\nentity has accepted full responsibility for the actions of the consultant. If the contracting\nthe terms are unclear), then the consultant must independently comply with the registration\nand security plan requirements, as applicable.\n\n<<<PAGE 3>>>\n\nPart 172 of the HMR. Generally, a \"hazmat employee\" is any person who is employed on a\nAll hazmat employees must be trained in accordance with the requirements in Subpart H of\nfull-time, part-time, or temporary basis and who in the course of such employment directly\naffects hazardous materials safety. (See § 171.8 for the complete definitions of \"hazmat\nemployee\" and \"hazmat employer.\") A third-party consultant or its employees or staff who\nperform instructional or advisory functions are not hazmat employees and, therefore, are not\nsubject to the training requirements.\nFor those who are not self-employed, a \"hazmat employer\" is one who employs a hazmat\nmaterials to be transported in commerce; or (3) designs, manufactures, inspects, repairs, or\nemployee and who (1) transports a hazardous material in commerce; (2) causes hazardous\ntests packaging that is marked, sold or certified as qualified for use in transporting hazardous\nhazardous materials to be transported in commerce\" includes one who performs the functions\nmaterials in commerce. While not specifically defined in the HMR, a person who \"causes\nof a \"person who offers\" or \"offeror.\" Functions of a \"person who offers\" or \"offeror\"\nTherefore, a company that performs these functions is a hazmat employer and is subject to\ninclude, but are not limited to the functions (i.e., pre-transportation functions) listed above.\nthe training requirements. A third-party consultant and its employees or staff who perform\npre-transportation functions on behalf of, as an agent for, or under contract to a hazmat\nemployer must be trained in accordance with applicable HMR requirements. Additionally, a\nthird-party consultant and its employees and staff who perform pre-transportation functions\nrelated to the hazardous materials listed in § 172.800(b) are subject to the in-depth security\ntraining requirements (§ 172.704(a)(5)) even though the third-party consultant may not\nnecessarily develop his or her own security plan. It is the responsibility of the hazmat\ntraining must be determined between the third-party consultant and its clients).\nemployer to ensure that all hazmat employees are trained. The issue of who performs the\nI hope this information is helpful. Please contact us if you require additional assistance.\nSincerely,\nSure\nSusan Gorsky\nRegulations Officer\nOffice of Hazardous Materials Standards\n\n<<<PAGE 4>>>\n\nDer Kinderen\n$171.1\nTATRO TEKOSKY SADWICK LLP\n•\nATTORNEYS AT LAW\nApplicabiliti\n07-0118\n660 S. FIGUEROA STREET, SUITE 1450\nLos ANGELES, CALIFORNIA 90017\nTELEPHONE (213) 225-7171\nFACSIMILE (213) 225-7151\nSTEVEN R. TEKOSKY, Esc\nSTEVETEKOSKY@TTSMLAW.COM\n(213) 225-7150\nJune 11, 2007\nMr. Edward Mazzullo\nDirector of the Office of Hazardous Materials Standards\nPipeline and Hazardous Materials Safety Administration\nPHH 10\n1200 New Jersey Avenue S.E.\nWashington, D.C. 20590\nRe:\nInterpretation of HazMat Regulations\nDear Mr. Mazzullo:\nWe write to seek interpretation and clarification of certain pre-transportation regulations\nfunctions. The foregoing notwithstanding, the consultant will not at any time physically handle,\nA. Questions Posed\nUnder the various circumstances set forth in Section B of this letter, we wish to know whether\nsuch a third-party consultant is required to:\n1. Create a Security Plan and train/certify its personnel on that security plan, despite the fact\nianitorial supplies in quantities normally found in comparably-sized offices) and despite\nthat the consultant's facilityies) do not contain hazmat (other than standard office and\nthe fact that no employee, agent, contractor or subcontractor of the consultant actually\nSee definition of \"pre-transportation function\" at 49 CFR section 171.8.\n\n<<<PAGE 5>>>\n\nMr. Edward Mazzullo\nTATRO TEKOSKY SADWICK LLP\n•\nJune 11, 2007\nPage 2\nATTORNEYS AT LAW\nhandles hazmat at any location;\n2. Register with the DOT as \"a person who offers hazardous materials;\"\n3. Provide Hazmat employee training, testing and certification.\nB. Assumed Facts and Circumstances\nIt is our understanding, consistent with 70 Federal Register 20018 (April 15, 2005), that in order\n-- generally instructs hazmat offerors and transporters regarding the proper ways \"to prepare\nhazardous materials for transportation;\"\n-- reviews hazmat offerors' and/or transporters' procedures for preparing hazmat for\ntransportation and offers findings/suggestions regarding such operations as well as providing\ngeneral guidance as to future operations;\nlabeling, marking, shipping paper completion and placarding requirements;\n-- offers training in non-bulk hazmat shipping, including shipping classification, packaging,\n-- identifies hazmat contractors and carriers on behalf of hazmat offerors and, if directed by the\ninformation among those offerors, contractors and carriers;? and\nofferor to do so, facilitates retention of the contractors and carriers as well as communication of\n-- provides advice regarding proper emergency response in the event of hazmat spills at the\nand may involve contacting an appropriate ER firm and coordinating the response through\nThis activity may include dispatch of a professional Emergency Response (\"ER\") company,\ntransportation of the resulting hazardous waste. All classification, packaging, marking, labeling,\nshipping paper preparation, and transport will be managed either by the generator or the ER\ncontractor. Potential DOT 5800.1 reporting notification would not be performed by the\nreporting of a hazardous substance spill greater than a Reportable Quantity may be performed by\nconsultant, but rather by the generator or the ER company. Please note, however, that the\nthe consultant. In addition the consultant may submit reports (where appropriate) based on the\nrequirements of 49 CFR 171.15 (closure of a major roadway > 1 hr. or spill of infectious\nmaterials, etc.) or if a spill requires an immediate report to the National Response Center\n(including spills that occur in transport).\n\n<<<PAGE 6>>>\n\nMr. Edward Mazzullo\nJune 11, 2007\nTATRO TEKOSKY SADWICK LLP\nATTORNEYS AT LAW\nPage 3\nhazmat offerors' sites and during transportation, including guidance regarding reporting\nrequirements.\nre-transportation functions listed, in pertinent part, under 49 CFR section 171.8, although the\nAdditionally, from time to time, the consultant will perform some or all of the followin\nconsultant does not physically handle, mark, label, store, maintain, control or transport hazmat:\n(1)\nDetermining the hazard class of a hazardous material;\n(2)\nSelecting a hazardous materials packaging;\n...\n(7)\nPreparing a shipping paper;\n(8)\nProviding and maintaining emergency response information;\n(9)\nReviewing a shipping paper to verify compliance with the HMR or international\nequivalents;\nthat it contains a hazardous material.3\nSelecting proper placards for a freight container or transport vehicle to indicate\nThe third-party consultant does not perform the pre-transportation functions of\ntransportation functions\" (5) and (6) at 49 CFR section 171.8. On occasion, however, the\n\"[m]arking [or labeling] a package to indicate that it contains a hazardous material.\" See \"pre-\nconsultant makes a determination of the proper marking and/or labeling of a package to indicate\nthat it contains a hazardous material.\nC. Requests for Interpretation\nBased on information from Ms. Susan Gorsky of your agency that has been\ncommunicated orally to us by her staff, we understand that the HazMat regulations do not apply\nand are not implicated where the third-party contractor provides advice and guidance alone to its\nclients and where the third-party contractor does not make any binding determinations governing\nany pre-transportation or transportation functions. We also understand based on information\nfrom Ms. Gorsky that the HazMat security plan regulations [49 CFR section 172.800 et seq. and\ncontrol or transport hazardous materials but who do engage in activities such as filling out a\n172.704(a)(5)] are inapplicable to third-party contractors who do not handle, store, maintain,\nshipping paper or making a placarding determination in connection with the transportation by\n3\nSee 49 CFR section 171.8.\n\n<<<PAGE 7>>>\n\n•\nMr. Edward Mazzullo\nTATRO TEKOSKY SADWICK LLP\n•\nJune 11, 2007\nPage 4\nATTORNEYS AT LAW\nothers of hazardous materials. Please confirm our understanding regarding both of these\nsituations.\n(a) In addition to seeking your confirmation of Ms. Gorsky's interpretations as set forth\nbove, we have an additional request for clarification that we did not discuss with Ms. Gorsky'\ntaff. The logical implication of the information imparted by Ms. Gorsky's staff regarding th\ndeterminations, leads us to understand -- and seek your clarification -- that, similarly, the security\ncontrol or transport hazardous materials, but who do fill out shipping papers or make placarding\nhaarlous material, bot mely ly pee um de nor hare of the oming acts: 1) determine he\nprovide and maintain emergency response information; and v) review a shipping paper to verify\ncompliance with the HMR or international equivalents.\n(b) Ms. Gorsky's staff also suggested that, irrespective of whether or not one actually\nsentin 171.8'S delintain of controlled or offers ised hazard us there tal an anar us elerider\nection 171.8's definition of \"\ninterpretation.\nregulation's registration requirement. See 49 CFR section 171.2(c). Please confirm this\n(c) Finally, we understand from Ms. Gorsky's staff that except for the in-depth security\napplicable to all hazmat employees.* Please confirm this understanding.\n4 The definition of \"hazmat employee\" includes anyone employed by a hazmat employer\nwho: transports hazardous materials in commerce; causes hazardous materials to be transported\nin commerce; designs, manufactures, inspects, repairs or tests containers or packaging that is\nin commerce. Id. As the elements of \"transporting hazardous materials,\" \"causing the\nmarked, certified, or sold by that person as qualified for use in transporting hazardous materials\ntransportation of hazardous materials\" and \"person who offers\" are separate terms, the fact that\nsection 171.8's definition of hazmat employer references transporting hazardous materials\n((1)(i)) and causing hazardous materials to be transported ((1)(ii)), while omitting \"person who\noffers\" might suggest that an employer who falls within the definition of a \"person who offers\"\nin the context of section 171.8, but who does not transport, or cause the transportation of,\nhazardous materials, is not a hazmat employer. As a hazmat employee, by definition, works for\n\n<<<PAGE 8>>>\n\nMr. Edward Mazzullo\nTATRO TEKOSKY SADWICK LLP\nJune 11, 2007\nPage 5\nATTORNEYS AT LAW\nAre employees who work for an employer who is a person who \"offers\" by virtue of that\nAdditionally, as suggested by footnote 4, we seek clarification of the following question\nemployer's performance of pre-transportation functions hazmat employees requiring Subpart H\ntraining if such an employer is not a hazmat employer because the employer does not transport or\ncause the transportation of hazardous materials?\nhazmat security plan, registration and/or training requirements apply in the situations set forth in\nGiven these assumed facts, we request your guidance and interpretation as to whether the\nthis letter in Sections C.1, C.2(a), (b) and (c), and C.3.\nThank you for your consideration of this request.\nVery truly your:\na hazmat employer, if an employee is a person who \"offers,\" but whose employer is not a hazmat\nemployer (because the employer neither transports, nor causes the transportation of, hazardous\nrequirements are prescribed for \"training hazmat employees\" (section 172.700(a), (b);\nmaterials), such an employee cannot be a hazmat employee. Finally, as the Subpart H Training\nsuch training requirements are inapplicable to such an employee -- even if such an employee\n172.702(a)(b); 172.704(a)), it follows that if one is, by definition, not a hazmat employee, then\nengages is certain pre-transportation functions.","truncated":false,"body_characters":17088}