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Interpretation Response #07-0116 ([Tatro Tekosky Sadwick LLP] [Mr. Steve R. Tekosky])

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date:

Company Name: Tatro Tekosky Sadwick LLP

Individual Name: Mr. Steve R. Tekosky

Location State: CA Country: US

View the Interpretation Document

Response text:

SEP 21, 2007

Mr. Steve R. Tekosky                              Ref. No. 07-0116

Tatro Tekosky Sadwick LLP

660 S. Figueroa Street, Suite 1450

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.

Generally, the HMR apply to any person who offers for transportation or transports a hazardous material in commerce. The HMR define "person who offers" or "offeror" to mean any person who performs or is responsible for performing a pre-transportation function required under the HMR for transportation of a hazardous material in commerce or who tenders or makes a hazardous material available to a carrier for transportation in commerce (see § 171.8). Further, each person who performs a function covered by the HMR must do so in accordance with the HMR (see § 171.2(a)). Pre-transportation functions are functions 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 container or on a package or container containing a residue of a hazardous material.
  5. Marking a package to indicate that it contains a hazardous material.
  6. Labeling a package to indicate that it contains a hazardous material.
  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.
  10. For each person importing a hazardous material into the United States, providing the shipper with timely and complete information as to the HMR requirements that will apply to the transportation of the material within the United States.
  11. Certifying that a hazardous material is in proper condition for transportation in conformance with the requirements of the HMR.
  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.
  14. Selecting, providing, or affixing placards for a freight container or transport vehicle to indicate that it contains a hazardous material (§ 171.1(b)).

The registration requirements in Subpart G of Part 107 of the HMR apply to any person who offers for transportation or transports one or more of the hazardous materials listed in § 107.601(a). The security plan requirements in Subpart I of Part 172 of the HMR apply to any person who offers for transportation or transports one or more of the hazardous materials listed in § 172.800(b). A third-party consultant who performs instructional or advisory functions concerning the performance of pre-transportation or transportation functions does not meet the definition of a "person who offers" or "offeror" and, therefore, is not subject to the registration requirements or the security plan requirements of the HMR.

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 response information, selecting appropriate placards for a freight container or transport vehicle, or performing any other pre-transportation function related to the hazardous 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 such as determining the hazard class of a material, selecting an appropriate packaging, preparing a shipping paper, providing and maintaining emergency response information, 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 also subject to the security plan requirements. Furthermore, the security plan requirements apply to any person who performs or is responsible for performing a pre-transportation 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 functions on behalf of, as an agent for, or under contract to a shipper, carrier, or other entity could be covered by the contracting entity"s security plan and registration, if the contracting entity has accepted full responsibility for the actions of the consultant. If the contracting entity has not accepted full responsibility for all functions performed by the consultant (or if the terms are unclear), then the consultant must independently comply with the registration and security plan requirements, as applicable.

All hazmat employees must be trained in accordance with the requirements in Subpart H of Part 172 of the HMR. Generally, a "hazmat employee" is any person who is employed on a 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 employee and who (1) transports a hazardous material in commerce; (2) causes hazardous materials to be transported in commerce; or (3) designs, manufactures, inspects, repairs, or tests packaging that is marked, sold or certified as qualified for use in transporting hazardous materials in commerce. While not specifically defined in the HMR, a person who "causes hazardous materials to be transported in commerce" includes one who performs the functions of a "person who offers" or "offeror." Functions of a "person who offers" or "offeror" include, but are not limited to the functions (i.e., pre-transportation functions) listed above. Therefore, a company that performs these functions is a hazmat employer and is subject to 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 employer to ensure that all hazmat employees are trained. The issue of who performs the training must be determined between the third-party consultant and its client(s).

I hope this information is helpful. Please contact us if you require additional assistance.

Sincerely,

Susan Gorsky

Regulations Officer

Office of Hazardous Materials Standards

107.601, 171.1, 172.800

Regulation Sections

Section Subject
107.601 Applicability
171.1 Applicability of Hazardous Materials Regulations (HMR) to persons and functions
172.800 Purpose and applicability