{"operation":"document","citation":"11-0140","title":"Law Office of Seaton & Husk, L.P. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2011-11-02","effective_on":null,"summary":"11-0140 response to Law Office of Seaton & Husk, L.P. concerning 171.1, 171.8.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0140.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0140.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-11-0140","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2011/110140.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Ave\" S.E.\nWashingIon. DC 20590\nNOV 022011\nMr. Henry E. Seaton Esq.\nLaw Office of Seaton & Husk, L.P.\n2240 Gallows Road\nVienna, VA 22182\nReference No.: 11-0140\nDear Mr. Seaton:\nThis responds to your June 8, 2011 letter requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to the definition of a\nhazardous material employee. You reference a March 29, 2011 (Reference No. 11-0029)\nletter in which the Pipeline and Hazardous Materials Safety Administration (PHMSA)\ndetermined that if a broker of transportation services performs any of the hazmat functions\nthe person would be considered a hazmat employee under the HMR. In your scenario, your\nlaw firm represents a number of transactional property brokers licensed by the Federal\nMotor Carrier Safety Administration (FMCSA) to arrange transportation for compensation\npursuant to 49 CFR 371. On occasion, these clients are asked to arrange for the\ntransportation of hazardous materials as defined by 49 CFR 171.8. You ask whether a\ntransactional property broker meets the definition of a hazardous materials employee who\nrequires hazardous material training.\nAs specified in § 171.1, the HMR govern the safe transportation of hazardous materials in\nintrastate, interstate and foreign commerce. Generally, a \"hazmat employee\" is any person\nwho is employed on a full-time, part-time, or temporary basis and who, in the course of\nsuch employment, directly affects hazardous materials safety. (See § 171.8 for the\ncomplete definitions of \"hazmat employee\" and \"hazmat employer.\") In other words, a\nperson who performs duties that are regulated under the HMR is considered to be a hazmat\nemployee. A broker is considered a \"hazmat employee\" under § 171.8 if he or she\nperforms a function of an offeror or carrier. Functions of an offeror include, but are not\nlimited to: selection of the packaging for a hazardous material; physical transfer of the\nhazardous materials to a carrier; classifying hazardous materials; preparing shipping\npapers; reviewing shipping papers to verify compliance with the HMR or international\nequivalents; signing hazardous materials certifications on shipping papers; placing\nhazardous materials markings or placards on vehicles or packages; and providing placards\nto a carrier.\n\n<<<PAGE 2>>>\n\nIn addition, a carrier is defined in § 171.8 to mean a person who transports pas~engers or\nproperty in commerce by rail car, aircraft, motor vehicle, or vessel. Ifwhat you describe in\nyour letter as a \"broker of transportation services\" does not perform any of these functions,\nthis person would not be considered a \"hazmat employee\" under the HMR, and would not\nbe required to have hazardous material training.\nI hope this satisfies your inquiry. Please contact us if we can be of further assistance.\nSincerely,\nT. Glenn Foster\nChief, Regulatory Review and Reinvention Branch\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nLAW OFFICE OF SEATON & HUSK, L.P.\nHENRY E. SEATON, ESQ. 2240 Gallows Road JERE R. LEE, ESQ.\nAdmitted in VA, TN, DC Vienna, VA 22182 OF COUNSEL\nheseaton@aol.com Admitted in TN only\nTelephone: (703) 573-0700\nFacsimile: (703) 573-9786\njerelee@mindspring.com\nJOHN T. HUSK, ESQ.\nAdmitted in VA, DC\njohnhusk@aol.com 222 Second Ave. North RICHARD GOBBELL\nELIZABETH O. MCGRATH, ESQ. Suite 360-M Non-Lawyer\nAdmitted in VA\nNashville, TN 37201 Motor Carrier Safety Consultant\nemcgrath@transportationlaw.net Telephone: (615) 255-0540\ngobbeI149@comcast.net\nwww.transportationlaw.net\nJEFFREY E. COX, ESQ.\nAdmitted in V A, DC, MD\nief/cox@transportationlaw.net\nAnJ~~\"\n~ \"I, S\nJune 8, 2011 'De(t;)i tons\nf I-DIt.(O\nT. Glenn Foster\nChief, Regulatory Review\nand Reinvention Branch\nU.S. Department of Transportation\nPipeline and Hazardous Materials\nSafety Administration\n1200 New Jersey Ave., SE\nWashington, DC 20590\nVia U.S. Mail\nRe: RequestJor Interpretation of 49 C.F.R. 171.8 - Whether a Transactional\nProperty Broker Me~ts the Definition of a Hazardous Material Employee\nDec,,:\" Mr. Foster:\nOur law firm represents a number of transactional property brokers Ii~hsed\nby the FMCSA to arrange transportation for compensation pursuant to 49 C.F.R.\n371. On occasion, these clients are asked to arrange for the transportation of\nhazardous materials as defined by 49 C.F.R. 171.8. In a recent interpretation (110029)\nyou provided some guidance relative to the need for training of property\nbrokers as hazardous materials employees under relevant regulations.\nWe believe this interpretation was general in nature and should not apply\nwhere the function of transactional property brokers is narrowly defined as set forth\nherein. We request a clarification and the provision of additional guidelines with\nrespect to this matter.\n, ;. ,\" '\"' .,\" \" .\nIn the ordinary course of their bUSiness, pure transactional brokers arrange\nfor transportation by an authorized carrier. \"An employee or bona fide agent of a\ncarrier is not a broker within the meaning of the regulations when it offers to\narrange transportation of shipments which the carrier has accepted and is legally\nbound to transport.\" See 49 C.F.R. 371.2. .\n\n<<<PAGE 4>>>\n\nSimilarly, transactional brokers do not provide the functions of an \"Offeror\"\nwhich you enumerated in that they do not select the packaging for hazardous\nmaterials, physically transfer shipments to a carrier, classify hazardous materials,\nprepare shipping documents, review shipping papers to verify HMR compliance, sign\nhazardous materials certifications or place hazardous material marking or\nplacarding on vehicles or packages.\nThe role of the transactional broker is to negotiate shipping rates with\ncarriers and transmit shipping instructions from the conSignor or customer to the\ncarrier to permit pickup. Bills of lading and placards are typically prepared and\nexchanged between the consignor (or customer) and the carrier involved.\nBy statute and regulation, a broker is not a carrier and does not meet the\ndefinition set forth in Section 171.8.\nIn your attached letter to Mr. Maham you opine that if a \"broker of\ntransportation services\" performed any of the enumerated functions, the person\nwould be considered a \"hazmat employee\" under the HMR. The purpose of this\nletter is to confirm that the reverse is true and that when a transactional broker\nlimits its services as set forth above and performs none of the functions listed in\nyour March 29, 2011 letter, special hazardous materials training otherwise required\nby \"hazmat employees\" is not required.\nYours truly,\n~.\nHenry E. Seaton\nHES/nre","truncated":false,"body_characters":6667}