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A little background information. If you want to avoid being subject to DOT’s regulations for transporting hazardous materials in commerce, you must be careful that your employees do not perform any of the functions related to these regulations.
There is much confusion concerning the definition of an “offeror” under the HMRs. The key to the definition is whether your employees perform any of the “pretransportation functions.” Those functions include:
- Determining the hazard class of a hazmat;
- Selecting the packaging for a regulated hazmat;
- Filling a hazmat package;
- Securing a closure on a filled or partially filled hazmat package;
- Marking or labeling packages that contain hazardous materials;
- Providing and maintaining emergency response information;
- Preparing and reviewing shipping papers to verify compliance with the HMRs or their international equivalents;
- Certifying that hazardous materials are in proper condition for transportation;
- Loading, blocking, and bracing a hazmat package in a freight container or transport vehicle, and segregating the package from incompatible cargo; and
- Selecting and affixing hazmat markings or placards on vehicles or packages, or providing placards to a carrier.
Scenario 1: What about supervisors?
Delegate, delegate, delegate! That’s what supervisors are encouraged to do. However, do managers need the same training that their staff performing the task need? According to PHMSA, the answer is “Yes.”
PHMSA’s definition of "hazmat employee" includes those who perform duties that are regulated under the HMRs and those who, in the normal course of their employment, perform or manage the work of those performing such duties.
Even if a supervisor does not meet the definition of “hazmat employee,” letters of interpretation from PHMSA concerning the definition of “hazmat employee” would indicate that the direct supervisors of hazmat employees require training. In one interpretation letter in response to an inquiry from a hazmat employer, PHMSA said the following:
“Persons who, in the normal course of their employment, perform or manage the work of those performing one or more of the activities listed above would be considered hazmat employees and require general awareness, function-specific, safety, security awareness and quality assurance program required by 49 CFR 172.704 and 49 CFR 179.7 within 90 days of employment and every three years thereafter.” (Emphasis added.)
Join us on Tuesday, September 29, for our in-depth webinar, Hazardous Materials: How to Achieve Alignment with International Standards
Scenario 2: Splitting the difference with your carrier
Another PHMSA interpretation letter presents a scenario where a hazardous waste generator and a waste hauler split the performance of offeror functions. In this case, the generator and the hauler are both subject to the regulations as offerors and the hazardous waste generator employees need hazmat training. The workers at the generator’s facility who prepare a package of hazardous waste for transportation—such as by selecting a packaging, assuring that the packaging is not overfilled, and securing the closures on the package—are performing offeror functions that directly affect hazmat transportation safety, even if the waste hauler assumes responsibility for other pretransportation functions and for certifying that the shipment conforms to HMR requirements. In this case, both the generator and the waste hauler are performing offeror functions.
Current hazardous materials regulations (HMR) have been amended to align better with international standards, which have seen several recent changes. Click here to learn more!
Scenario 3: It’s all on the hauler
A third PHMSA interpretation letter discusses whether you are an offeror and, if so, whether your employees need hazmat training when they contact a carrier to pick up a portable tank containing the residue of a hazmat. Again, in this case, if your employees perform any pretransportation functions to prepare the portable tank containing the residue of a hazmat for transportation in commerce, then you are an offeror for purposes of the HMR, and your employees need training.
However, if you contract with the carrier to perform all pretransportation functions related to the residue shipment, including securing the closures on the portable tank, preparing the shipping paper, providing emergency response information, and certifying the shipment is in proper condition for transportation in conformance with HMRs, then you are not considered an offeror for purposes of the HMR, and your employees do not need hazmat training.