{"operation":"document","citation":"23-0025","title":"Perkins Coie — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2023-08-09","effective_on":null,"summary":"23-0025 response to Perkins Coie concerning 172.704.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-23-0025.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-23-0025.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-23-0025","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/77911/230025.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nAugust , 2023\nEdward (Ted) Boling\nJeffrey L. Hunter\nCounsel for the Port of Portland\nPerkins Coie\n700 13th Street, NW\nSuite 800\nWashington, D.C. 20005\nReference No. 23-0025\nDear Messrs. Boling and Hunter:\nThis letter is in response to your January 19, 2023, letter requesting clarification of the\nHazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the definition of a\nhazardous materials (hazmat) employer as it relates to the Port of Portland. Specifically, your\ncompany represents the Port of Portland (i.e., the Port) to ensure the Port complies with any\nregulatory requirements of the HMR and any applicable requirements of 33 CFR § 126.27.\nIn your letter, you provide background information related to Terminal 6 a designated\nwaterfront facility located within the Port which houses ship berths and an intermodal rail and\ntruck yard. Additionally, automobiles, containers, and bulk cargo are managed at Terminal 6,\nand therefore, the Port holds a eneral ermit as required by 33 CFR Part 126. At the terminal in\nquestion, members of the International Longshore and Warehouse Union (ILWU) who are\nemployed by various stevedores and carriers to unload and load cargo perform hazmat\nfunctions. The Port does not hire, direct, supervise, or otherwise exercise control over the\nmembers of the ILWU handling cargo including hazmat cargo at Terminal 6. Also, it is the\nunderstanding of the Port that members of the ILWU are dispatched or assigned to a port or pier\nby the Pacific Maritime Association (PMA) and all stevedores in the local area are members of\nthe PMA and are obligated to hire and or use ILWU members under a West Coast Collective\nBargaining Agreement for cargo handling procedures that occur at marine facilities. You state\nthat the Port does not have any employees and thus it is your\nunderstanding the Port would not be required to train and maintain training records as required in\nPart 172, Subpart H (Training) of the 49 CFR even though hazmat cargo handling is occurring at\nTerminal 6. You describe that the Port acts as a landlord for leased portions which includes\nTerminal 6 and, other than providing coordination between vessels, the stevedores, and the\nrailroad companies for the public portions of the facility, the Port has no direct involvement in\nthe day-to-day operations, such as hazmat cargo handling, at Terminal 6.\n\n<<<PAGE 2>>>\n\nIn July 2020, the Port submitted a request for interpretation1 to the Pipeline and Hazardous\nMaterials Safety hazmat e\nas defined in § 171.8 and clarification of who is responsible for training and recordkeeping\nrequirements as required in Part 172, Subpart H (Training). In February 2021, PHMSA issued a\nresponse in which we said that it was determined based on information provided in the July\n2020 request for interpretation that the Port was not responsible for training and recordkeeping\nrequirements under the HMR. Moreover, it was determined that the Port has no employee\ndesignated as a hazmat employee nor does any Port employee engage in the loading or\nunloading of hazmat cargo, packing hazmat in containers, preparing labels or shipping papers for\nhazmat, or any other hazmat pre-transportation functions described under the HMR. Therefore,\nyou seek to confirm that based on the previously issued letter of interpretation (Ref. No. 20-\n0055), the Port is not designated as a hazmat employer and is not required to train and maintain\ntraining records for members of the ILWU or any member assigned to the port or pier by the\nPMA.\nTo the extent that the Port has no direct employment of persons performing hazmat functions, in\nthis case the ILWU members or others assigned by the PMA, then the Port would not be\nconsidered a hazmat employer, for purposes of the HMR. In accordance with the HMR, any\nperson who performs a hazmat function subject to the HMR is considered a hazmat employee\nand is responsible for complying with the requirements of the HMR applicable to performance of\nthat function. As such, a hazmat employer is required to train and maintain training records of all\nhazmat employees. Based on the information provided in your letter, the ILWU, and the PMA\nwhich are parties external to the Port who provide hazmat cargo handling services would be\nresponsible for complying with the training and recordkeeping requirements of § 172.704 as\nhazmat employers. Please note that our response is limited to the scope of the HMR, and the\nspecific circumstances identified in your letter. Additionally, this response does not relieve the\nPort from the applicability of the HMR for other hazmat functions it may perform, or functions\nperformed in\ninclude, but are not limited to, those responsibilities and requirements the\nPort must observe and fulfill as the holder of a general permit for handling dangerous cargo\nunder 33 CFR § 126.27.\nFinally, it may be beneficial for you and your clients to seek out the General Counsel of the\nUnited States Coast Guard (USCG) for additional or follow-up meetings regarding any related\nissues.\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\n1 20-0055\n\n<<<PAGE 3>>>\n\n23-0025 Baker\nPeRKINSCOlE\n700 13th Street, NW\nWashington, D.C. 20005-3960\nSuite 800\n• +1.202.654.6200\n+1.202.654.6211\nPerkinsCoie.com\nJanuary 19,2023\nTedBoling@perkinscoie.com\nEdward A. Boling\nD. +1.202.661.5872\nF. +1.202.624.9505\nVIA EMAIL AND OVERNIGHT DELIVERY\nJonathan Meyer, General Counsel\nU.S. Department of Homeland Security\n245 Murray Lane, SW\nMail Stop 0485\nWashington, DC 20528-0485\nJohn E. Putnam, General Counsel\nU.S. Department of Transportation\n1200 New Jersey Ave, SE\nWashington, DC 20590\nRe:\nPort of Portland\nApplication of the Hazardous Materials Regulations (49 C.F.R. Part 172) through\nthe General Permit Requirements under 33 C.F.R. Part 126\nMessrs: Meyer and Putnam:\nWe are writing on behalf of the Port of Portland (\"Port\") in response to an enforcement action\nthat was initiated by the United States Coast Guard (\"USCG\") based on a misinterpretation of\nDepartment of Transportation regulations. Having exhausted our appeal rights, we seek your\nassistance in finding a resolution so that the Port can comply with its applicable regulatory\nobligations under the Hazardous Material Regulations (\"HMR\") contained in 49 C.F.R. Parts\n171 - 180 and its obligations under the General Permit issued under 33 C.F.R. §126.27. The Port\nrequests a meeting with General Counsel's Offices of DHS and DOT to discuss this matter and\nhopefully reach the conclusion that the provisions of 33 C.F.R. Part 126 do not expand the HMR\no as to obligate the holder of a General Permit to assume the obligations of a \"Hazma\n'mplover\" with respect to every individual handling hazardous material at a designate\nBackground\nregion through travel, trade and economic development.\n158138377.3\nPerkins Coie LLP\n\n<<<PAGE 4>>>\n\nJonathan Meyer, General Counsel, US DHS\nJohn E. Putnam, General Counsel, US DOT\nJanuary 19, 2023\nPage 2\nAt issue here is Terminal 6. Terminal 6 is a multipurpose, 419-acre facility along the Columbia\nyard. Automobiles, containers and breakbulk cargoes are handled at Terminal 6, and it is the\nRiver in Portland, Oregon. The terminal features 5 ship berths and an intermodal rail and truck\nonly active container terminal in the State of Oregon. Terminal 6 is a designated waterfront\nfacility for purposes of 33 C.F.R. Part 126, and the Port is the holder of the General Permit.\nthat members of the International Longshore and Warehouse Union (\"ILWU\"), who are directly\nThis USCG enforcement action, initiated in May of 2020, concerns the alleged failure to ensure\nemployed by the various stevedores and carriers to unload and load cargo, had received the\nproper training under 49 C.F.R. Part 172 and allegations that the Port was not maintaining the\nappropriate training records for those members.! On July 7, 2020, the US DOT Federal Railroad\nAdministration (\"FRA\") issued a Notice of Probable Violation (NOPV\") alleging similar\nviolations.\nThe Port does not hire, direct, supervise or otherwise exercise control over the individual IL WU\nmembers handling cargo at Terminal 6. The IL WU members are dispatched by the Pacific\nMaritime Association (\"PMA\") and all of the stevedores in the Portland market (and nearly all\nocean carriers operating in the container trade) are members of the PMA and are obligated to\nhire/use IL WU members under the West Coast Collective Bargaining Agreement for cargo\nhandling work that occurs at marine facilities. The Port is not a member of the PMA and does\nnot employ, direct, or control the IL WU longshoreman at Terminal 6 that handle hazardous\ncargo. The Port itself does not have any \"hazmat employees\" that it would otherwise be required\nto train and maintain training records for under the HMR. Other than acting as a landlord for the\nleased portions and coordinating between vessels, the stevedores and the railroad companies for\nthe public portions of the facility, the Port has no direct involvement in the day-to-day movement\nof cargo at Terminal 6.\nOn July 31, 2020, the Port submitted a letter to the US DOT Pipeline Hazardous Material Safety\nAdministration (\"PHMSA\") requesting clarification as to who is the \"Hazmat Employer\"\nresponsible for training and recordkeeping of the stevedore company employees and members of\nthe IL WU. On February 19, 2021, PHMSA issued its regulatory determination concluding that\nthe \"Hazmat Employers\" responsible for complying with the training and recordkeeping\nrequirements under 49 C.F.R. § 172.704 are the third-party stevedores and contractors\nproviding cargo handling services at Terminal 6, who are the employers of the IL WU members\nUSCG re-issued the CG-385F referencing 33 C.F.R. §§ 126.3 and 126.27 as the basis for the alleged deficiency\n' Attached is the USCG's CG-385F issued to the Port on May 15, 2020 (Exhibit A). On February 25, 2021, the\n(Exhibit B).\n158138377.3\nPerkins Cole LLP\n\n<<<PAGE 5>>>\n\nJonathan Meyer, General Counsel, US DHS\nJohn E. Putnam, General Counsel, US DOT\nJanuary 19, 2023\nPage 3\nthat handle containers with hazardous materials, not the Port? Following PHMSA's\ninterpretation, the FRA terminated its Notice of Probable Violation.?\nHowever, the USCG did not terminate its enforcement action following PHMSA's interpretation\nof DOT rules. The Port appealed the USCG's enforcement action through the various\nmechanisms authorized under 33 C.F.R. § 160.7 submitting a final appeal to the Assistant\nCommandant for Prevention. On May 4, 2022, the USCG issued its final decision.4\nNotwithstanding PHMSA's interpretation and FRA's withdrawal of its enforcement action, the\nUSCG found that through the General Permit under 33 C.F.R. §126.27 \"the Port is required to\nensure compliance with the Hazardous Material Regulations (HMR) contained in 49 C.F.R. Parts\n171 - 180, regardless of who is directly handling the cargo.\"\nDuring the Port's appeal, the USCG Captain of the Port-Columbia River issued an October 13,\n2021 letter informing the Port that the training plan and materials received by Harbor Industrial\nServices Corporation (\"Harbor\"), which is the primary stevedore providing cargo handling\nservices at Terminal 6, satisfy the applicable training requirements of the HMR and the\ndeficiencies noted in the CG-835F had been resolved. Ón October 28, 2021, the USCG\ncompleted an annual inspection of the Port's terminal facilities and reviewed the training records\nmaintained by Harbor. During the inspection, the USC noted certain incomplete training\nrecords and found the training records were not maintained in a usable format. At a meeting on\nNovember 16, 2021, Harbor presented the USCG with its plan to address the deficiencies noted\nduring the inspection. At the conclusion of the meeting, the USCG presented the Port with a\nnew CG-835F. On December 16, 2021, Harbor, through its counsel, provided an update to the\nUSCG regarding its training program and additional training records to address the deficiencies\nnoted in the new CG-835F. On January 4, 2022, the USCG responded directly to Harbor's\ncleared.?\ncounsel indicating that the additional training records had been reviewed and the deficiencies\ncould issue additional enforcement actions against the Port for any infraction of the HMR\nWhile the Port appreciates that the CG-835Fs have been resolved, the USCG maintains that it\nregulations by any stevedore, cargo carrier or any IL WU member despite the fact that none of\nthe employees of those entities are directly employed by the Port and the Port has no authority to\nhire, direct, control, supervise or train those employees. With all due respect to the USCG, it\nremains the Port's position that the USCG's interpretation of the applicability of the HMR to the\n3 Attached is the letter from FRA terminating the NOPV (Exhibit D).\n2 Attached is PHMSA's February 19, 2021 regulatory determination (Exhibit C).\n* Attached is the USCG's May 4, 2022 final decision (Exhibit E).\n5 Attached is USCG's October 13, 2021 letter (Exhibit F).\n\" Attached is the USCG's January 4, 2022 communication to Harbor's counsel (Exhibit H).\n6 Attached is the new CG-835F presented to the Port on November 16, 2021 (Exhibit G).\nPerkins Coie LLP\n1581383773\n\n<<<PAGE 6>>>\n\nJonathan Meyer, General Counsel, US DHS\nJohn E. Putnam, General Counsel, US DOT\nJanuary 19, 2023\nPage 4\nPort is not supported by either the HMR or the text of 33 C.F.R. Part 126. It is not reasonably\npossible or practical for the Port to ensure that all third-party employees have received the\nappropriate training under the HMR and maintain training records for those employees and the\nGeneral Permit under 33 C.F.R. Part 126 does not impose those requirements on the Port or\nmake the Port strictly liable for a third-party's compliance with the HMR.\nFollowing issuance of the USCG's final determination, the Port reached out to the USCG to\nengage in additional discussions. The USCG declined to participate in further discussions\nregarding this matter. The Port also submitted a Freedom of Information Request Act (\"FOIA\")\nrequest on June 17, 2022 asking for similar enforcement actions issued by the USCG against\nother US ports. In response to an initial email from the USCG asserting the request was \"too\nbroad in scope or did not specifically identify the records which you are seeking,\" the FOIA\nrequest was reduced to only request similar enforcement actions against West Coast ports where\nthe same stevedores and IL WU members may unload or load hazardous cargo. Despite repeated\nrequest to the USCG FOIA officer regarding the status, the USC has never provided any\ndocuments in response to the FOIA request, not even the CG-835Fs issued to the Port.\nDiscussion\nPHMSA's February 19, 2021 Interpretation\nPHMSA is the agency charged by Congress with developing and administering the HMR, and is\nthe authoritative agency regarding whether the Port, as the governmental entity who owns the\nport facility, is the \"Hazmat Employer\" responsible for training all third-party workers, including\nvessel employees, who load, unload and handle cargo containers. PHMSA's February 19, 2021\nregulatory determination concludes that the third-party stevedores and contractors providing\ncargo handling services at Terminal 6 and who are the employers, both in fact and at law, of the\nIL WU members that handle cargo at Terminal 6, and that from time-to-time handle containers\nwith hazardous materials are the \"Hazmat Employers\" responsible for complying with the\ntraining and recordkeeping requirements under 49 C.F.R. § 172.704, not the Port.\nThe underlying basis for the original CG-835F was the USCG's interpretation of PHMSA's\nregulations that the Port is the \"Hazmat Employer\" of the IL WU labor who handle the containers\nat Terminal 6. Regardless of the citation adjustment in the \"revised\" CG-835F and the reference\nto 33 C.F.R. §§ 126.3 and 126.27 in the new CG-835F, the underlying alleged violations of the\ntraining and recordkeeping requirements under 49 C.F.R. § 172.704 remain the same because\nthere are no separate or distinct hazardous material training or record retention requirements\n8 And PHMSA is therefore the agency, with respect to the HMR, entitled to Auer deference. See, e.g., Kisor v.\nWilkie, 139 S.Ct. 2400, 2412-2413 (2019) (\"... the agency that promulgate[s] a rule is in the better position to\nreconstruct its original meaning.\"\") (internal quotation marks and citations omitted).\nPerkins Coie LLP\n158138377.3\n\n<<<PAGE 7>>>\n\nJonathan Meyer, General Counsel, US DHS\nJohn E. Putnam, General Counsel, US DOT\nJanuary 19, 2023\nPage 5\ndescribed, or even referenced, anywhere in 33 C.F.R. Part 126. As PHMSA has determined that\nthe Port is not the \"Hazmat Employer\" of the IL WU labor, the Port should not be held\nresponsible for their training and related recordkeeping requirements under the HMR. As such,\nthere is no legal basis for the CG-835Fs to have been issued to the Port. The FRA, which issued\na NOPV to the Port alleging the same training and related recordkeeping deficiencies, withdrew\nits NOPV in apparent deference to PHMSA's interpretation. The USCG should likewise accept\nPHMSA's interpretation of PHMSA's own regulations.\nGeneral Permit\nFollowing PHMSA's interpretation that the Port is not the \"Hazmat Employer\" under the HMR,\nthe USCG then tried to hold the Port responsible under 33 C.F.R. § 126.27.? It appears the\nUSCG relied on PHMSA's statement in its interpretation that \"the Port may be held responsible\nfor non-compliance with HMR as a holder of the general permit under 33 C.F.R. § 126.27.\"\nPHMSA did not take the position that the Port was responsible but rather that the Port \"may be\nresponsible\" as the holder of the General Permit under 33 C.F.R. § 126.27, in apparent deference\nto USCG. USCG's reliance on the language to determine the Port is the \"responsible party\" may\nhave merit if 33 C.F.R. § 126.27 actually included a reference to the HMR training and\nrecordkeeping obligations and imposed them on the holder of the General Permit, but it does\nneither.\n33 C.F.R. Part 126 does not make the Port strictly liable to ensure the third-party contractors\ncomply with the HMR. 33 C.F.R. § 126.27 does not itself independently create training or\nrecord retention requirements on the holder of the General Permit, and in fact any reference to\n\"training\" or \"record retention\" are conspicuously absent from both its text and the text of 33\nemployees, much less place responsibility on the holder of a General Permit for the training and\nrecord retention requirements under 49 C.F.R. §§ 172.702 and 704 with respect to all individuals\nwho may handle hazardous materials and are not otherwise the owner's \"hazmat employees\"\nunder the HMR. In addition to the employees of stevedores, the broad interpretation adopted by\n9 The original CG-835F was re-issued on February 25, 2021 (six days after PHMSA' interpretation) referencing 33\n10 The conditions under 33 C.F.R. § 126.15 generally address access and safety including lighting, fire-fighting,\nC.F.R. § 126.27 as the regulatory citation supporting the alleged violations.\nsecurity, material handling equipment, heating and electrical systems. The regulation references various NFPA\nof 33 C.F.R. Part 126 is found in 33 C.F.R. § 126.3 wherein the regulation incorporates certain hazardous materials\nchapters, but does not reference or otherwise expressly incorporate the HMR. The only references to the HMR in all\nidentified under the HMR into the definition of \"dangerous cargo\" and 33 C.F.R. § 126.27 describing and\nstored at designated waterfront facilities.\nincorporating the packaging, marking and labelling requirements under the HMR with respect dangerous cargo\nPerkins Coie LLP\n158138377.3\n\n<<<PAGE 8>>>\n\nJonathan Meyer, General Counsel, US DHS\nJohn E. Putnam, General Counsel, US DOT\nJanuary 19, 2023\nPage 6\nUSCG would also require the owners and operators of waterfront facilities to ensure that all\nrecords for those employees. Such an interpretation, beyond lacking any textual basis, is directly\nvessel and trucking line employees have received the proper training and maintain training\ncontrary to the HMR. See 49 C.F.R. § 176.13 (imposing the training and recordkeeping\nobligations on the vessel carrier which the USCG may enforce pursuant to 49 C.F.R. § 176.15).\ngovernmental entity who owns the designated waterfront facility to ensure that all third-parties\nThe General Permit does not, by its terms, purport to impose strict liability upon the\nwho perform work or may perform work at the port facility have received the appropriate\ntraining under the HMR or otherwise require the governmental entity to independently maintain\ntraining records for all such persons. The Port is not aware that the USCG has ever interpreted\nthe definitions set forth in 33 C.F.R. § 126.3 or conditions enumerated § 126.27 to impose these\nsubstantial and onerous requirements on the owner of a designated facility by implication and\nsolely on the basis of their status as the General Permit holder. Moreover, there is little policy\njustification for doing so where it is undisputed that the actual employers of such individuals\nincluding vessel operators, trucking lines, and stevedores —are already independently obligated\nto comply with the HMR and within the scope of USCG's enforcement authority with respect to\ntheir activities on waterfront facilities.\nConclusion\nThe fact that the Port offers terminal services that are provided by third-party independent\ncontractors does not make the Port the \"Hazmat Employer\" of the stevedore's employees and all\nIL WU members who perform cargo handling services. There is no legal basis or policy\njustification for the USCG to attempt to hold the Port responsible under either the HMR or the\nGeneral Permit for the training and recordkeeping requirements under the HMR for the IL WU\nmembers that handle cargo at Terminal 6.\nThe Port appreciates your review of this information and an opportunity to discuss a pathway\ntowards resolution. As the only container terminal in Oregon, restricting the shipping of only\nnon-hazardous materials through Terminal 6 will significantly impact operations, the Portland\nand regional economy as well as potentially resulting in the loss of jobs. The Port remains\ncommitted to working with the USCG to see that appropriate steps are taken by the stevedores\nand the carriers that employ the IL WU members to ensure the IL WU members receive the\nappropriate training under HMR and the records are properly maintained. However, the Port\ncannot be in a position that it is strictly liable for all infractions of the HMR by any party that\nuses Terminal 6.\n158138377.3\nPerkins Coie LLP\n\n<<<PAGE 9>>>\n\nJonathan Meyer, General Counsel, US DHS\nJohn E. Putnam, General Counsel, US DOT\nJanuary 19, 2023\nPage 7\nWe look forward to discussing this matter with you. Please reach out to me at the number above\nor Edward (Ted) Boling at (202) 661-5872 to arrange a meeting or if you have any questions.\nSincerely,\nEdward (Ted) Boling/Jeffrey L. Hunter\nCounsel for the Port of Portland\nCC:\nGeoff Owen, Director of Marine Operation\nDavid Ashton, Assistant General Counsel, Port of Portland\\\nEnclosures:\nExhibit A - CG-385F issued to the Port on May 15, 2020\nExhibit B - CG-385F re-issued to the Port on February 25, 2021\nExhibit C - PHMSA's February 19, 2021 regulatory determination\nExhibit D - Letter from FRA terminating the NOPV\nExhibit E - USCG's May 4, 2022 final decision\nExhibit F - USCG's October 13, 2021 communication to the Port\nExhibit G - CG-835F issued to the Port on November 16, 2021\nExhibit H - USCG's January 4, 2022 communication\nPerkins Coie LLP\n158138377.3\n\n<<<PAGE 10>>>\n\nDEPARTMENT OF HOMELAND SECURITY\nU.S. Coast Guard\nFACILITY INSPECTION REQUIREMENTS\n1. Date of Inspection 2. COTP Zone/Unit\n3. MISLE Activity Number\n4. FIN\n04/27/2020\nMSU Portland, OR\nPDX20046\n5. Facility Name\n6. Inspection Type\nPort of Portland\nSafety Exam 33 CFR 126\nContact the inspecting officer to verify compliance when the following items) have been corrected:\nDescription\nCite\nDue Date\nFailure to ensure employee obtained proper training prior to performing a\n49 CFR 172. 702 (a)\n06/22/2020\nHAZMAT Function.\nFunction specific training is severely deficient and contains\nincorrect\n49 CFR 172.704 (a) (2)\n06/22/2020\ninformation.\nHAZMAT employees lacked reguired security awareness training.\n49 CFR 172. 704 (a) (4)\n06/22/2020\nHAZMAT Employees lack required In-Depth Security Training\n49 CFR 172.704 (a) (5)\n06/22/2020\nHAZMAT safety training did not specifically address all aspects of work and\n49 CFR 172.702 (b)\n06/22/2020\nhazards.\nHAZMAT Training records\nare not in a sustainable or usable format.\n49 CFR 172.704 (d)\n06/22/2020\nFacility Representative: (print)\nSignature:\nUSCG Inspector: (print)\nSignature:\nMST1 Daniel Jarrett\nJARRETT.DANIEL.N.1252450706\nDigitally signed by JARRETT.DANIELN.1252450706\nDate: 2020.05.15 13:59:30-0700\nPhone:\nEmail:\n503-240-9333\nMSUPDXWWM@uscg.mil\nEXHIBIT A\nCG-835F (04/18)\n\n<<<PAGE 11>>>\n\nFACILITY INSPECTION REQUIREMENTS\nRIGHTS OF APPEAL\n33 Code of Federal Regulations Subpart 101.420; 127.015; 154. 1075; 160.7\nAny person directly affected by a decision, action, order, or direction of a COP may request reconsideration by the COTP.\nAppeal procedures vary by Subpart and general provisions are outlined below. Specific procedures for each Subpart can be\nAny person not satisfied with the COTP's decision following the request for reconsideration may make a formal appeal.\nfound through https://www.ecfr.gov/, and should be consulted prior to filing an appeal.\n33 CFR 101.420: Any person directly affected by a decision or action taken by a COTP under this subchapter, may appeal\nDistrict Commander may appeal that decision or action to the Commandant (CG-5P).\nthat action or decision to the cognizant District Commander. Any person directly affected by a decision or action taken by a\n33 CFR 127.015: Any person not satisfied with a ruling by the COTP may appeal the ruling to the District Commander of the\ndistrict in which the action was taken. Any person not satisfied with the ruling of the District Commander may appeal that\nruling in writing to the Commandant (CG-5P).\n33 CFR 154.1075: Within 10 days of the COP's decision on a request for reconsideration, the facility owner or operator may\nowner or operator may formally appeal the decision of the District Commander to Commandant (CG-MER) via the District\nappeal the decision of the COTP to the District Commander. Within 30 days of the District Commander's decision, the facility\nCommander.\nappeal to the District Commander through the Captain of the Port. Any person directly affected by an order or direction issued\n33 CFR 160.7: Any person directly affected by an order or direction issued by, or on behalf of, a Captain of the Port may\nby, or on behalf of, a District Commander, or who receives an unfavorable ruling on an appeal may appeal to the Area\nCommander through the District Commander. Any person who receives an unfavorable ruling on an appeal taken by the Area\nCommander may appeal to the Commandant (CG-5P).\nIn all instances action by Commandant is final agency action. Failure to submit a formal appeal in accordance with\nprocedures and time limits in the applicable regulatory cite results in the decision, action, order or direction becoming final\nagency action.\nCG-835F (04/18)\nEXHIBIT A\n\n<<<PAGE 12>>>\n\nDEPARTMENT OF HOMELAND SECURITY\nU.S. Coast Guard\nFACILITY INSPECTION REQUIREMENTS\n1. Date of Inspection\n2. COTP Zone/Unit\n3. MISLE Activity Number\n4. FIN\n04/27/2020\nMSU PORTLAND\n7144092\nPDX 20046\n5. Facility Name\n6. Inspection Type\nPort of Portland\nAdministrative Inspection\nContact the inspecting officer to verify compliance when the following items) have been corrected:\nDescription\nCite\nDue Date\nThis deficiency is a citation adjustment from original deficiency issued by\n33 CFR 126.27\n06/22/2020\nactivity 6945697, citing 49 CFR 172.\n33CFR 126.27: Failure to comply with general permit for handling of\ndangerous cargo per the definition in 33CFR 126.3 for the following reasons:\nHAZMAT safety training did not specifically address all aspects\nof work and\nhazards; Failure to ensure employee obtained proper training prior to\nperforming a HAZMAT Function; Function specific training is severely\ndeficient and contains incorrect information; HAZMAT employees lacked\nrequired safety awareness training; HAZMAT Employees lack required In-Depth\nSecurity Training; HAZMAT Training records are not in a sustainable or\nusable format.\nFacility Representative: (print)\nSignature:\nUSCG Inspector: (print)\nSignature:\nLCDR Dixon Whitley\nDixon Whitley\nDate 2021 02 1023 Mi\nPhone:\nEmail:\n(503)\n240-9333\nMSUPDXWWM@uscg.mil\nEXHIBIT B\nCG-835F (04/18)\nReset\n\n<<<PAGE 13>>>\n\nFACILITY INSPECTION REQUIREMENTS\nRIGHTS OF APPEAL\n33 Code of Federal Regulations Subpart 101.420; 127.015; 154.1075; 160.7\nAny person not satisfied with the COTP's decision following the request for reconsideration may make a formal appeal.\nAny person directly affected by a decision, action, order, or direction of a COP may request reconsideration by the COTP.\nAppeal procedures vary by Subpart and general provisions are outlined below. Specific procedures for each Subpart can be\nround through https://www.ecfr.govl, and should be consulted prior to filing an appeal.\nthat action or decision to the cognizant District Commander. Any person directly affected by a decision or action taken by a\n33 CFR 101.420: Any person directly affected by a decision or action taken by a COTP under this subchapter, may appeal\nDistrict Commander may appeal that decision or action to the Commandant (CG-5P).\ndistrict in which the action was taken. Any person not satisfied with the ruling of the District Commander may appeal that\n33 CFR 127.015: Any person not satisfied with a ruling by the COTP may appeal the ruling to the District Commander of the\nruling in writing to the Commandant (CG-5P).\nappeal the decision of the COTP to the District Commander. Within 30 days of the District Commander's decision, the facility\n33 CFR 154.1075: Within 10 days of the COTP's decision on a request for reconsideration, the facility owner or operator may\nowner or operator may formally appeal the decision of the District Commander to Commandant (CG-MER) via the District\nCommander.\nappeal to the District Commander through the Captain of the Port. Any person directly affected by an order or direction issued\n33 CFR 160.7: Any person directly affected by an order or direction issued by, or on behalf of, a Captain of the Port may\nCommander through the District Commander. Any person who receives an unfavorable ruling on an appeal taken by the Area\nby, or on behalf of, a District Commander, or who receives an unfavorable ruling on an appeal may appeal to the Area\nCommander may appeal to the Commandant (CG-5P).\nIn all instances action by Commandant is final agency action. Failure to submit a formal appeal in accordance with\nagency action.\nprocedures and time limits in the applicable regulatory cite results in the decision, action, order or direction becoming final\nCG-835F (04/18)\nEXHIBIT B\nReset\n\n<<<PAGE 14>>>\n\nPipeline and Hazardous\nMaterials Safety\nAdministration\nFebruary 19, 2021\nGeoff Owen\nPort of Portland\nDirector, Marine Operations\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\nindicated that vessel and rail carriers can work (contract) directly with the third parties\nact on behalf of the carriers to perform functions that are subject to the HMR. You also\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\nEXHIBIT C\n\n<<<PAGE 15>>>\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\nEXHIBIT C\n\n<<<PAGE 16>>>\n\nU.S. Department\nof Transportation\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nAdministration\nFederal Railroad\nJohn Akre\nPort of Portland\n7200 NE Airport Way 97218\nCare of Jeffrey Hunter\nPerkins Coie LLP\n1120 N.W. Couch Street Tenth Floor\nPortland, OR 97209-4128\nIn Response To: Request to Confirm the Status of Case XPOP 2020-1(HMT)\nDear Mr. Akre:\nI can confirm that the Federal Railroad Administration (FRA) has declined further\nenforcement action in the case of XPOP 2020-1(HMT), based on personal knowledge and\na review of FRA records. Please direct any questions me at jeffrey. frank@dot.gov, or\n(202) 493-8957.\nSincerely,\nSeffrey 1 Frank\nJeffrey Frank\nAttorney, Federal Railroad Administration\nEXHIBIT D\n\n<<<PAGE 17>>>\n\nU.S. Department of\nHomeland Security\nommandal\nInited States Coast Gua\n703 Martin Luther King Jr., Ave. S.\nTOP 75(\nCoast Guard\nUnited States\nStat Symbol: C6 0493-7501\nFax. (202) 31272-1322\n16600\nMay 4, 2022\nPerkins Coie LLP\nAttn: Jeffrey L. Hunter\nCounsel for Port of Portland\n1120 NW Couch Street, 104 Floor .\nPortland, OR 97209-4128\nDear Mr. Hunter:\nintormation supplied, appealing the decision of Commander, U.S. Coast Guard Pacific Area\nThis letter is in response to your correspondence dated November 24, 2021, and additional\nresponsible for compliance with Title 49 Code of Federal Regulations (CFR), as it relates to\ndated September 29, 2021. This decision determined that the Port of Portland (\"Port\") is\n126. After careful consideration of the materials you submitted, along with a review of the\nmaintaining your General Permit for Handling Dangerous Cargo in accordance with 33 CFR Part\napplicable law, regulations, and policy, I uphold the decision of the Commander, U.S. Coast\nGuard Pacific Area, and deny your appeal.\nas evidenced by its Marine Tariff System, through which the Port collects fees and contracts with\nThe Port is the owner of Terminal 6 and facilitates the movement of goods through the terminal\nessel owners and operators in order to import and export dangeronoratoes throug C.F.R.\n126.13, and per 33 C.F.R. § 126.3, the Port is the \"facility operator.\" As a \"designated waterfront\nerminal. Terminal 6 is also a \"designated waterfront facilitv\nfacility,\nhazardous material(s) subject to the Dangerous Cargoes Regulations\" found in 49 CFR Parts\n\" the Port is designated for the \"handling, storing, loading, and discharging of any\n§ 126.27, the Port is authorized to handle hazardous materials through Terminal 6. Without this\nCFR § 126.17. As the sole holder of the general permit issued by the Coast Guard under 33 CFR\nand would have to be re-routed to other facilities that hold a general permit.\ngeneral permit, the handling of dangerous goods would not be permitted through the terminal,\nIn your appeal, you state that the Port is not the HAZMAT employer because Port employees do\na designated waterfront facility, the Port is required to ensure compliance with the Hazardou:\nnot directly handle hazardous materials on Terminal 6. However, as the general permit holder of\nMaterials Regulations (HMR) contained in 49 CFR Parts 171-180, regardless of who is directly\nhandling the cargo. Accordingly, the Port of Portland is responsible for providing proof of\ntraining and meeting the record keeping requirements in 49 CFR Part 172. This decision is in\nKeping teh the Pipe in and Haades that PilA response taes no pie i or from\nthe applicability of the HMR for ... functions performed in association with other federal\nEXHIBIT E\n\n<<<PAGE 18>>>\n\nrequirements, such as the Port's obligations under 33 CFR Part 126. These include, but are not\nTina geter, hose is or habiting and requis argis the 3 CER $ 126.21d fulfill as the holder\nThank you for bringing your concerns to my attention. The Coast Guard remains focused on\nmaintaining compliance with safety and security requirements.\ninvolving the review of this specific issue and regulatory applicability will not be considered. If\nThis letter serves as final agency action pursuant to 33 CFR § 160.7(d). Future requests\nyou have any questions regarding this decision, please contact CDR Benjamin Mazyck at 202-\n372-1130 or by email at Benjamin.D.Mazyck@uscg.mil.\nSincerely,\nN.a. Vaughan\nN. A. VAUGHAN\nU.S. Coast Guard\nCaptain, Office of Port Facility Compliance\nBy direction\nCommander, Coast Guard Atlantic Area (Api)\nCommander, Coast Guard Pacific Area (PAC-54\nCommander, Thirteenth Coast Guard District (dp\nCommander, Coast Guard Sector Columbia Rive\nCommander, Marine Safety Unit Portland, Oregor\nEXHIBIT E\n\n<<<PAGE 19>>>\n\nU.S. Department of\nHomeland Security\nCommander\nUnited States Coast Guard\nWe 9946-9693\nUnited States\nSeclor Columbia River\nPax:: (503 861-6366\nFax:\nCoast Guard\n16611\nOCT 1 3 2021\nPort of Portland\nAttn: Mr. Geoff Owen\nDirector of Marine Operations\n7200 NE Airport Way\nPortland, Oregon 97218\nDear Mr. Owen:\nMy office has received the Port of Portland Terminal 6 Hazardous Materials Training Plan\n(Enclosure 1), provided by Ring ","truncated":true,"body_characters":44209}