{"operation":"document","citation":"20-0055","title":"Port of Portland — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2021-02-19","effective_on":null,"summary":"20-0055 response to Port of Portland concerning 172.704.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-20-0055.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-20-0055.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-20-0055","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/74751/200055.pdf","body":"<<>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nFebruary 19, 2021\nGeoff Owen\nDirector, Marine Operations\nPort of Portland\n7200 NE Airport Way\nPortland, OR 97208\nReference No. 20-0055\nDear Mr. Owen:\nThis letter is in response to your July 31, 2020 request for clarification regarding the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to the definition of the\n“hazmat employer” at the Port of Portland (“the Port”). In your letter, you reference ongoing\ndiscussions between the Port, the state of Oregon, and federal agencies regarding the Port’s\nresponsibility for training and recordkeeping of personnel that load and unload hazardous\nmaterials (hazmat) cargoes.\nIn your letter, you seek clarification as to who is the “hazmat employer” responsible for training\nand recordkeeping for those who load and unload hazmat cargoes at Terminal 6. According to\nthe information you provided, the Port contracts with third parties for maintenance of the\ncranes, cargo handling equipment, and the provision of loading and unloading services at\nTerminal 6 of the Port facility. Vessel and rail carriers may also contract with the Port and\narrange for these third parties to provide cargo handling services. In such cases, the third parties\nact on behalf of the carriers to perform functions that are subject to the HMR. You also\nindicated that vessel and rail carriers can work (contract) directly with the third parties\nproviding cargo handling services, contract with a different third party (e.g., a stevedore) of\ntheir choosing, enter a collective bargaining agreement with a labor union representing dock\nworkers, and/or employ labor directly for cargo handling services. You stated that no Port\nemployees are engaged in the loading or unloading of hazmat cargoes, packing hazmat in\ncontainers, preparing labels or shipping papers or any other pre-transportation functions\ndescribed under the HMR. Additionally, you explained that the Port does not engage in the\ndirect selection, hiring, supervising, or directing of personnel handling hazmat.\nPlease note that our response below is limited to the scope of the HMR and the specific\ncircumstances identified in your letter. Additionally, this response does not relieve the Port\nfrom the applicability of the HMR for other hazmat functions it may perform or functions\nperformed in association with other federal requirements, such as the Port’s obligations under\n33 CFR Part 126. These include, but are not limited to, those responsibilities and requirements\n\n<<>>\n\nthe Port must observe and fulfill as the holder of a general permit for handling dangerous cargo\nunder 33 CFR § 126.27.\nIn accordance with the HMR, any person who performs a hazmat function subject to the HMR is\nresponsible for complying with the requirements of the HMR applicable to performance of that\nfunction. Based on the information provided in your letter, third parties providing hazmat cargo\nhandling services are responsible for complying with the training and recordkeeping\nrequirements of § 172.704 as “hazmat employers.” It is noted, however, that the Port may be\nheld responsible for non-compliance with the HMR at its facilities as a holder of the general\npermit under 33 CFR § 126.27. The degree of regulatory liability is determined on a case-by-\ncase basis, and is dependent on the facts of the specific situation.\nI hope this information is helpful. Please contact us if we can be of further assistance.\nSincerely,\nDirk Der Kinderen\nChief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<>>\n\nBaker\n20-0055\nFrom: Foster, Glenn (PHMSA)\nTo: Dodd, Alice (PHMSA)\nCc: DerKinderen, Dirk (PHMSA); Kelley, Shane (PHMSA); Nickels, Matthew (PHMSA)\nSubject: FW: 2020-07-31 Request for Guidance Letter from The Port of Portland\nDate: Friday, July 31, 2020 2:46:21 PM\nAttachments: 2020-07-31 Request for Guidance from PHMSA - T6 HMR - Final.pdf\nAlice,\nPlease have the attached checked in and assigned to the next Specialist in the rotation. Please\ninclude Shane’s below instructions when you send the assignment of the Interp email to the\nSpecialist and again in the narrative section of the Interp record in FMP.\nThanks,\nGlenn\nFrom: Kelley, Shane (PHMSA)\nSent: Friday, July 31, 2020 2:38 PM\nTo: Foster, Glenn (PHMSA) ; DerKinderen, Dirk (PHMSA)\n\nCc: Nickels, Matthew (PHMSA) \nSubject: Fwd: 2020-07-31 Request for Guidance Letter from The Port of Portland\nPlease have this logged and let’s coordinate directly with Christina as we move ahead. Flag this one\nfor Director review please.\nThanks\nGet Outlook for iOS\nFrom: Tackett, Christina (PHMSA) \nSent: Friday, July 31, 2020 2:33 PM\nTo: Kelley, Shane (PHMSA)\nSubject: FW: 2020-07-31 Request for Guidance Letter from The Port of Portland\nChristina L. Tacket\nAssistant Chief Counsel, Office of Chief Counsel\nUnited States Department of Transportation\nPipeline and Hazardous Materials Safety Administration\n1200 New Jersey Avenue, S.E., Washington, D.C. 20590\nOffice: 202.366.8570 ◊ Mobile: 202.807.8824\nPHMSA Home | LinkedIn | Twitter | HAZMAT | OPS\nPRIVILEGED & CONFIDENTIAL: This e-mail, including any attachments, is confidential, intended only for\n\n<<>>\n\nthe named recipient(s) above and may contain information that is privileged, confidential, attorney work product\nor otherwise legally protected. If you have received this message in error, or are not the named recipient(s), please\nimmediately notify me and permanently delete this e-mail message and any attachments from your workstation\nand/or network mail system.\nFrom: Wonnacott, Terri [mailto:Terri.Wonnacott@portofportland.com]\nSent: Friday, July 31, 2020 2:21 PM\nTo: Tackett, Christina (PHMSA) ; Jeremy.C.Smith@uscg.mil; Frank,\nJeffrey (FRA) ; Hubbell, Raymond (FRA)\n; Whitley, Earl (PHMSA) ;\ntmccarthy@harborindustrial.com; mfudurich@harborindustrial.com; JHunter@perkinscoie.com\nCc: Orf, Nathan ; Pippenger, Dan\n; Owen, Geoff ; Akre,\nJohn \nSubject: 2020-07-31 Request for Guidance Letter from The Port of Portland\nCAUTION: This email originated from outside of the Department of Transportation (DOT). Do not click on links or\nopen attachments unless you recognize the sender and know the content is safe.\nAttached is a letter I’m sending on Geoff Owen’s behalf. Please let me know if I can do\nanything else.\nThank you,\nTerri L. Wonnacott\nLegal Assistant III\nLegal Division – PDX\n(503) 415-6194\nterri.wonnacott@portofportland.com\nwww.portofportland.com\nThe information contained in this e-mail message may be privileged, confidential and protected from\ndisclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly\nprohibited. If you think that you have received this e-mail in error, please e-mail the sender at\nterri.wonnacott@portofportland.com.\nPlease consider the environment before printing this email.","truncated":false,"body_characters":7283}