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U.S. Department of Transportation U.S. Department of Transportation Icon United States Department of Transportation United States Department of Transportation

Interpretation Response #23-0025

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

Interpretation Response Details

Response Publish Date:

Company Name: Perkins Coie

Individual Name: Edward (Ted) Boling

Location State: DC Country: US

View the Interpretation Document

Response text:

August 9, 2023

Edward (Ted) Boling
Jeffrey L. Hunter
Counsel for the Port of Portland
Perkins Coie
700 13th Street, NW
Suite 800
Washington, D.C.  20005

Reference No. 23-0025

Dear Messrs. Boling and Hunter:

This letter is in response to your January 19, 2023, letter requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the definition of a "hazardous materials (hazmat) employer" as it relates to the Port of Portland. Specifically, your company represents the Port of Portland (i.e., the Port) to ensure the Port complies with any regulatory requirements of the HMR and any applicable requirements of 33 CFR § 126.27.

In your letter, you provide background information related to Terminal 6—a designated waterfront facility located within the Port—which houses ship berths and an intermodal rail and truck yard. Additionally, automobiles, containers, and bulk cargo are managed at Terminal 6, and therefore, the Port holds a General Permit as required by 33 CFR Part 126. At the terminal in question, members of the International Longshore and Warehouse Union (ILWU)—who are employed by various stevedores and carriers to unload and load cargo—perform hazmat functions. The Port does not hire, direct, supervise, or otherwise exercise control over the members of the ILWU handling cargo—including hazmat cargo—at Terminal 6. Also, it is the understanding of the Port that members of the ILWU are dispatched or assigned to a port or pier by the Pacific Maritime Association (PMA) and all stevedores in the local area are members of the PMA and are obligated to hire and or use ILWU members under a West Coast Collective Bargaining Agreement for cargo handling procedures that occur at marine facilities. You state that the Port does not have any employees designated as a "hazmat employee" and thus it is your understanding the Port would not be required to train and maintain training records as required in Part 172, Subpart H (Training) of the 49 CFR even though hazmat cargo handling is occurring at Terminal 6. You describe that the Port acts as a landlord for leased portions—which includes Terminal 6—and, other than providing coordination between vessels, the stevedores, and the railroad companies for the public portions of the facility, the Port has no direct involvement in the day-to-day operations, such as hazmat cargo handling, at Terminal 6.

In July 2020, the Port submitted a request for interpretation1 to the Pipeline and Hazardous Materials Safety Administration (PHMSA) seeking clarification of the term "hazmat employer" as defined in § 171.8 and clarification of who is responsible for training and recordkeeping requirements as required in Part 172, Subpart H (Training). In February 2021, PHMSA issued a response in which we said that it was determined—based on information provided in the July 2020 request for interpretation—that the Port was not responsible for training and recordkeeping requirements under the HMR. Moreover, it was determined that the Port has no employee designated as a "hazmat employee" nor does any Port employee engage in the loading or unloading of hazmat cargo, packing hazmat in containers, preparing labels or shipping papers for hazmat, or any other hazmat pre-transportation functions described under the HMR. Therefore, you seek to confirm that based on the previously issued letter of interpretation (Ref. No. 20-0055), the Port is not designated as a hazmat employer and is not required to train and maintain training records for members of the ILWU or any member assigned to the port or pier by the PMA.

To the extent that the Port has no direct employment of persons performing hazmat functions, in this case the ILWU members or others assigned by the PMA, then the Port would not be considered a hazmat employer, for purposes of the HMR. In accordance with the HMR, any person who performs a hazmat function subject to the HMR is considered a hazmat employee and is responsible for complying with the requirements of the HMR applicable to performance of that function. As such, a hazmat employer is required to train and maintain training records of all hazmat employees. Based on the information provided in your letter, the ILWU, and the PMA—which are parties external to the Port who provide hazmat cargo handling services—would be responsible for complying with the training and recordkeeping requirements of § 172.704 as hazmat employers. Please note that our response is limited to the scope of the HMR, and the specific circumstances identified in your letter. Additionally, this response does not relieve the Port from the applicability of the HMR for other hazmat functions it may perform, or functions performed in association with other federal requirements, such as the Port’s obligations under 33 CFR Part 126. These include, but are not limited to, those responsibilities and requirements the Port must observe and fulfill as the holder of a general permit for handling dangerous cargo under 33 CFR § 126.27.

Finally, it may be beneficial for you and your clients to seek out the General Counsel of the United States Coast Guard (USCG) for additional or follow-up meetings regarding any related issues.

I hope this information is helpful. Please contact us if we can be of further assistance.

Sincerely,

Dirk Der Kinderen
Chief, Standards Development Branch
Standards and Rulemaking Division

172, 172.704

1 20-0055

Regulation Sections

Section Subject
172 HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, TRAINING REQUIREMENTS, AND SECURITY PLANS
172.704 Training requirements