Lawrence W. Bierlein, P.C. — Hazardous Materials Safety Interpretation

Page 1Pily file DEPARTMENT OF TRANSPORTATION RESBARCH AND SPECIAL PROGRAMS ADMINISTRATION Int. No. 87-2-RSPA ¿ INTERPRETATION SOURCE: Mark Smarts, Esq. Ameabury, MA 01913 FACT&: Section 173.301 prescribes the general requirements for shipping with a compressed gas must not be shipped unless it mas charged by or with the compressed gas cylindera. Paragraph (b) of S 173.301 states: "A container charged consent of the owner of the container." Mr. Smartz has tro questions: 1) Is the consent of the owner necessary if the cylinder is not offered and accepted for proof) to establish the ornership of a cylinder. transportation (Le., shipped), 2) Is there any specifle roquired method (l.e,, written INTERPRETATION: Under S 173.301(b), there is no prohibition against charging & cylinder without the consent of the owner of the cylinder, provided the charged cylinder is not offered for transportation in commerce. Therefore, if a person who offers a cylinder for transportation is also the person who charged it, the question of whether that person may be held accountable in a particular case depends on whether he obtained the permission of the cylinder owner to charge the cylinder. Il, for example, the refiller who offered the container for transportation received it from the owner, then permission to fill the container can be inferred under he offers a container for transportation that he received from a peraon who he $ 173.301(b). Homever, the refiller may be held accountable under S 173.301(b) if "nowg" is not the owner of the cylinder. Applying the definition of "knomledge" in 49 CFR S 107.299, a person has the requisite knowledge when he actually knows or should have known that an individual does not own a container. Written proof of person who offers the cylinder for transportation should have sufficient "objective" ownership is not required. To insulate oneself from liability under S 173.301(b), the facts to establish that a particular person owned the container. eorge W.fenley, Ji Chief Counsel Research and Special Programs Administration ISSUED: MAR - 2 1S57 alimozzle: 1111-11-278:02 TAA-469-266km9.1l6) CG.GLHI-Bm3400#

Page 2nterpretation 87-2-RSPA: ABSTRACT Under $ 173.301(b), it is acceptable to refill a container without the consent of the owner, provided the refilled container is not oflered and accepted for transportation in commerce. Homever, il the reflller also ships the container lability under S 173.301(b) may occur. If the transporting refiller received the container from an individual representing himself as the owner and the refiller has "knowledge" (as defined in 49 CPR S 107.299) such individual is the owner of the container, then permission to fill the container is granted under S 173.301(b). Yet, the individual who refills and offers the container for transportation may be held accountable under S 173.301(o) if the container was transferred by a person who he "knows" is not the owner of the container. Written proof of ownership is not required. - - -#

Page 3• Interpretation 87-2-R&PA: SECTIONS AFFECTED 49 CPR 107.299 49 CFR 173.901 49 CFR 173.301(b) •.#

Page 4• Interpretation 87-2-RSPA:REY WORDS Charging • Compressed Gas : Cylinders :. Owner's Consent Knowledge Refilling = =#