{"operation":"document","citation":"CHI-89-001","title":"National Tank Truck Carriers, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1989-04-14","effective_on":null,"summary":"CHI-89-001 response to National Tank Truck Carriers, Inc. concerning 171.2, 171.3, 172.3, 173.22.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-89-001.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-89-001.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-89-001","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-89-001.pdf","body":"<<<PAGE 1>>>\n\n•\n•\nU.S. Department\nof Transportation\nOffice of th\nhief Counse\n400 Seventh St.. S.W.\nWashington, D C. 20590\nResearch and\nSpecial Programs\nAdministration\nInt. No. 89-1-RSPA\nINTERPRETATION\nSOURCE:\nPresident\nMr. Clifford J. Harvison\nNational Tank Truck Carriers, Inc.\n2200 Mill Road\nAlexandria, Virginia 22314\nFACTS: National Tank Truck Carriers, Inc. (NTTC) has requested\nfollow-up interpretation\nto Int. No. 88-1-RSPA concerning persons\nresponsible as\n\"offerors\" (or \"shippers\") under regulations\nissued pursuant to the Hazardous Materials Transportation Act\n(HMTA) •\nThe essence of Int. 88-1-RSPA is as follows:\nAny person who performs, attempts to perform,\nor, under the circumstances involved, is\ncontractually or otherwise responsible to\nofferor\nperform, any of the functions\nassigned to the\nresponsible under the HMR\nor shipper by the\nfor their proper\nHMR is legally\nperformance.\nPerformance or attempted\nperformance of any offeror or shipper\nfunctions\nmay be evidence of responsibility\nunder the HMR for performance of other\ncommercial act, such\nofferor or shipper functions•\nas a sale or transfer of\nNo single\nthat responsibility.\nownership, is necessarily determinative of\nNTTC's request also recognizes that the earlier Interpretation\nstatedes at ere he Hazardous Matermans Regulations (FeR, 49 CFR\nParts 1/1-179, is determining which parties perform which\nbased on all relevant facts.\nrunctions and that this involves a case-by-case determination\nAccepting that premise and recognizing that answers to detailed\nhypothetical questions may not be appropriate or applicable to\nactual cases occurring in the future, NTTC nevertheless sets\na series of hypothetical fact patterns and requests answers\n\n<<<PAGE 2>>>\n\n2\nMany of NTT's questions seem to assume erroneously that there is\nonly one offeror in any given\nfact situation.\nIn actuality there\nmay be one or more offerors, jointly and severally responsible\ndapending upon\nfor compliance with the HMR, in any transportation scenario--\nthe details of that scenario.\nINTERPRETATION: NT's hypothetical fact patterns and related\nquestions are set forth below,\nthe answer of the Research and Special Programs Administration.\nand each question is followed by\nFACT PATTERN #1\nProducts\nCompany A is engaged in the production and marketing of petroleum\nproducts which are\nconsidered \"flammable\" and \"combustible\" under\nthe\nHazardous Materials Transportation Act.\nIn order to\nfacilitate distribution of these products,\nCompany A operates\nthese products from\nseveral facilities, the primary function of which is to transfer\nits own\nproduction and/or storage facilities\ndistribution to retail outlets owned or otherwise controlled by\ninto tank motor vehicles, owned by Company I, for subsequent\nCompany A.\ntrucks are loaded at Company A's \"facilities\"\nCompany Z is a motor common carrier.\nCompany Z's\nproduct\nto the \"retail outlets\".\nThere\nand transport the\nare no prior or existing\nagreements, between Company A and Company Z, regarding product\nownership or taking title to the product.\nQuestion --\n1s Company posee shippers or torter 02\"CER Parts 170-179,\nAnswer--\nis\nIn Fact Pattern #1, absent additional facts, Company A\nan offeror of hazardous materials for transportation\nand, as such, is responsible for compliance for all\nofferor and shipper.\nend in!\n172.3, 173.1,\nand 173.22). Although there are no facts\nresponsibilities (e.g., §§ 171.2,\n• 3% no the\nindicating that Company Z\nloads its own vehicles or issues shipping papers, it\nis an offeror, if Company Z\nwould be performing offeror functions and be\nresponsible for doing so in compliance with the HMR.\nAlso, Company Z is\na carrier and may not accept for\ntransportation or transport hazardous materials without\ncomplying with numerous HMR provisions applicable to\nthose functions (e.g., §§ 171.2 and 177.817).\n\n<<<PAGE 3>>>\n\n3\nFACT PATTERN #2\nproducts which are considered \"flammable\"\nCompany A is engaged in the production and marketing of petroleum\nand \"combustible\"\nunder\nthe Hazardous Materials Transportation Act.\nIn order to\nfacilitate distribution of these products, Company\nA operates\nseveral facilities, the primary function of which is to transfer\nthese products from its own\nproduction and/or storage facilities\ninto tank motor vehicles, owned by Company I, for subsequent\ndistribution to retail outlets owned or otherwise controlled by\nCompany A.\nCompany Zis a motor common carrier.\nCompany Z's\ntrucks are loaded at Company A's\n\"facilities\" and transport the\nproduct to the \"retail outlets\".\nBy prior contractual agreement, Company A agrees to permit\nCompany Z to load its trucks\n(at Company A's \"facilities\")\n24 hours a day with no representative of Company A in attendance\nduring the loading operations.\nAccess to Company A's facilities\nis accomplished by keys and/or electro-mechanical devices\nprovided by Company A.\nQuestion--\nFor the purposes\nis Company A the\n\"shipper\" (or \"offeror\")?\nof applicability of 49 CFR Parts 170-179,\nAnswer--\nCompany A and Company Z are both offerors.\nEither or\nboth would be responsible for compliance with\nparticular requirements of the HMR. Nothing in the\ngiven facts has\nrelieved Company A of its\nresponsibilities\nshipping papers, certify the shipment (§ 172.204), anc\nto classify the materials, prepare\nCompany Z performs offeror functions,\nprovide required placards (§ 172.507). However, if\nthat\nit do so in accordance with the HMR.\nHiR!' Surequires\n185173320 1(2) and 13924 thing 15519530 and\n177.834).\nCompanies\nThe extent of the joint and several responsibility of\nA\nand Z as offerors would\nbe determined, in\npart, by the terms of their contract with each other.\n\n<<<PAGE 4>>>\n\n4\nFACT PATTERN #3\nproducts which are considered \"flammable\" and \"combustible\" under\nCompany A is engaged in production and marketing of petroleum\nthe Hazardous Materials Transportation Act.\nIn order to\nfacilitate distribution of these products,\nCompany A operates\nseveral facilities, one function of which\nis to transfer these\nproducts from its own production and/or storage facilities into\ntank motor vehicles, owned by Company Z, for subsequent\ndistribution to retail outlets owned or otherwise controlled by\nCompany M.\ntrucks are loaded at Company A's\nCompany Zis a motor common carrier.\n\"facilities\" and transport the\nCompany I's\nproduct to the \"retail outlets\"\nCompany M is engaged in the retail and/or wholesale distribution\nof petroleum products under the brand names of Company A. By\nprior agreement between Companies\nA\nownership of the product shall\nand M it is agreed that\npass from Company A to Company M,\nprior to\nagreement\" further specifies\ntransportation\nfrom\nCompany A's facilities.\nSaid \"prior\nthat Company Z will provide\ntransportation services between Company A's facilities and\nCompany M's facilities.\nQuestions--\n(1)\nFor the purposes of applicability of 49 CFR Parts\n170-179, is Company A the \"shipper\" (or \"offeror\")?\n(2)\nFor the purposes\n170-179, is Company M the \"shipper\" (or \"offeror\")?\nof applicability of 49 CFR Parts\nAnswer--\nAs discussed in the Fact Pattern #1 answer, Company A\nis an offeror, and Company Z would be responsible for\nundertakes.\nproper performance of any offeror functions which it\nby virtue\nof its\nCompany M has not become an offeror solely\nhazardous\nmaterials prior to transportation. If\nacquisition of ownership of the\nCompany M directs the activities of Company A or\notherwise\nresponsible for their proper performance. This issue\nundertakes offeror functions, Company Mis\nwas discussed in Int. No. 88-1-RSPA:\nNo single factor\n•.. conclusively\nperformance of \"offeror\" functions\ndetermines legal responsibility for\nunder the HMR. For example,\ntransfer of ownership of the\nhazardous materials\nfrom the oil\ncompany to the purchaser does not,\nabsolve the oil company\nperformance of \"offeror\" functions\nof responsibility under the HMR for\nor impose them upon the purchaser.\n\n<<<PAGE 5>>>\n\n•\n5\ncompany's original ownership does\nOn the other hand, the oil\nnot necessarily result in the oil\ncompany being responsible under the\n'offeropperformance of all\nfunctions.\nThe ownership\nof the hazardous materials before,\ndurina or after the transportation\nof hazardous materials is only one\nof many relevant factors which must\nregulatory liability under the HMR.\nbe considered in determining\nFACT PATTERN #4\nSame fact pattern as that described in #3 (above), except that\n\"prior agreement\"\nstipulates that the transportation will be\nperformed in motor vehicles owned by Company M.\nQuestions--\n170-179 Pus Comsany apthe ashipper\" (or \"offeror\")?\n170-179, is Company A the\n(2)\n190-179, 4s Coms ny a ple bilper° (or cofferor\")?\npurposes\nAnswer--\nCompany A is an offeror. On the \"offeror\" issue, this\nare no facts indicating that Company M is an offeror.\nfact pattern\nis the same as Fact Pattern #1, and there\nIf Company M directs the activities of Company A or\notherwise undertakes\nofferor functions, Company Mis\nresponsible for their proper performance.\nFACT PATTERN #5\nSame fact pattern as that described in #3 (above), except that\nthe agreement specifies that Company M will Marrange for\ntransportation\"\nQuestions--\n(190-179, 4s Company atle blipper° (on cofferor\")?\n(2) For the purposes of applicability of 49 CFR Parts\n170-179, is Company M the \"shipper\" (or \"offeror\")?\n\n<<<PAGE 6>>>\n\n6\nAnswer--\nCompany A is an offeror. More information would be\nrequired concerning Company M's\nundertaking to \"arrange\nfor transportation\nin order to determine to what\nextent, if any, Company M is an offeror.\nIf Company M\nis contractually or otherwise responsible to perform\nany of the\nfunctions assigned by the HMR to the\nofferor, it is legally\n• responsible under the HMR for\nthe proper performance of those functions.\nFACT PATTERN #6\nShe greement specifies that company A will arrange cer tha\ntransportation\"\nQuestions--\n(1)\nFor the purposes of applicability of 49 CFR Parts\n170-179, is Company A the \"shipper\" (or \"offeror\")?\n(2)\n170-179, 45 Company a the blipper° (or corteror\",?\nAnswer--\nCompany A is an offeror.\nAs in Fact Patterns $3 an\n*4, there\nare no facts\nsufficient to indicate tha\nCompany M is an offeror.\nADDITIONAL QUESTION A\nWould there be any change in the determination of \"shipper\" (or\n\"offeror\") if the prior\nstipulated that ownership or title to the product transferred \"at\nagreement between Companies A and M\nthe time of delivery\" to Company M's facilities?\nAnswer--\nCompany A remains an offeror, and there is no basis on\nAssuming that this question refers to Fact Pattern #3,\nwhich to determine that Company M is an offeror.\nADDITIONAL QUESTION B\nWould there be any change in the determination of \"shipper\" (or\n\"offeror\") if the prior\nagreement between Companies A and M\nstipulated that ownership or title to the product transferred at\nthe time of loading (or transfer)\" into cargo tanks (regardless\nof ownership of the cargo tanks)?\n\n<<<PAGE 7>>>\n\n7\nAnswer--\nAgain assuming that this question refers to Fact\nPattern #3, Company A remains\nan offeror. However,\nCompany M has not become an offeror solely by virtue of\nits acquisition of ownership of the hazardous materials\nat the time of loading or transfer into cargo tanks --\na time\nlater than that hypothesized in Fact Pattern #3.\nAmy Flesh\nChief Counsel\nGeorge\nDate Issued:\nAPR 1 4 1989\nCERTIFIED MAIL - RETURN RECEIPT REQUESTED\n:\n\n<<<PAGE 8>>>\n\nInterpretation 89-1-RSPA: ABSTRACT\nAll relevant facts are considered in determining which persons\nare responsible for compliance with HMR provisions imposing\nresponsibilities upon offerors of hazardous materials.\nfrom whose facilities bulk liquid hazardous materials are\nA company\ntransported generally is an offeror of those hazardous materials\nregardless of the ownership of those materials.\npersons may become jointly and severally liable as offerors under\nHowever, other\nbilities imposed upon\nthe HMR by undertaking, or contracting to undertake, responsi-\nofferors by the HMR.\n\n<<<PAGE 9>>>\n\nInterpretation 89-1-RSPA: KEY WORDS\nHazardous Materials, Offer of for Transportation\nHazardous Materials, Ownership of\nOfferor\nOffering\nOwnership\nShipper\n\n<<<PAGE 10>>>\n\n:\n•\nInterpretation 89-1-RSPA:\nSECTIONS AFFECTED\n49 CFR 171.2\n49 CFR 172.3\n49 CFR 172.204\n49 CFR 172.507\n49 CFR 173.1\n49 CFR 173.22\n49 CFR 173.24\n49 CFR 173.30\n49 CFR 177.817\n49 CFR 177.834","truncated":false,"body_characters":12250}