National Tank Truck Carriers, Inc. — Hazardous Materials Safety Interpretation

Page 1• • US Department Office of the of Transpontation Chiel Counsel 400 Seventh St.. S.W Washington, D.C. 2052 Research and Special Programs Administration Int. No. 88-i-RSPA INTERPRETATION SOURCE: Clifford J. Harvison President National Tank Truck Carriers, Inc. 2200 Mill Road Alexandria, Virginía 22314 FACTS: National Tank Truck Carriers, Inc. (NTTC) takes 1ssu€ With a major oil company shipper of hazardous materials which recently commented in a DOT rulemaking docket as follows: While we (the major ofl company) may supply HM, we product was sold 'at the rack' are not necessarily the shipper because the This means we sold it as it was transferred from a pipe or hose into the truck's cargo tank. Our customer, the 'shipper' • arranged transportation. NTTC disagrees with the apparent conclusion that transfer of ownership of a hazardous material concurrent with or prior to . physical loading of the hazardous material into a truck's (or vessel's) cargo tank transfers HMTA shipper responsibilities (under 49 CFR 173.22 and other regulations under the HMTA) from the seller (which may own the storage tank, pipe or hose from which the material is being loaded) to the buyer of the material. In addition, NTTC states tank into which the hazardous material is transferred, the that, regardless of who owns the cargo transfer of ownership has no bearing on the "shipper" responsibilities under the Hazardous Materials Regulations (HMR) the "shipper". and thus the original owner, the oil company, remains liable as#

Page 22 INTERPRETATION: The word "shipper" is not specifically defined in the HMR (49 CFR Parts 170-179), due primarily to the fact that it is not possible for the Department to account for the numerous Although the word "shipper" does appear, it is used in an commercial arrangements that may exist under that concept. ordinary layman's manner rather than as term of art. a specific, technical. "offerors" for performance of the functions associated with Consequently, responsibflities generally are placed general duty and appearity provisions r t5 17401, 171.2. 2172.3, and 173.1). The key issue in determining the regulatory responsibilities which parties under the requirements in Parts 171, 172, and 173 is determining case determination based upon all relevant facts. Any person who perform which functions. This invo: ves a case-by- performs, attempts to perform, or, under the circumstances involved. any of the functions assigned is contractually or otherwise responsible to perform, legally responsible under the by the HMR to the offeror. is those functions. Any person's performance or attempted HMR for the proper performance of performance of any "offeror" functions may person's responsibility for performance of other "offeror" be evidence of that functions. In many cases, more than one person may be responsible for performing, or attempting to perform, "offeror" ducountable for ach su home of the •bfferor pesponsibdstyesally expressed in terms other than (Note that responsibilities for compliance may be "offeror" BE perring required get me italia, and other persons performing required functions NTTC could result in the oil company or the purchaser for the Application of these principles to the situation described by the carrier if different than the purchaser) being held legally responsible for compliance with requirements associated with determination would require consideration of all relevant facts, offering hazardous materials for transportation. That including ownership of the materials, functions performed or however, Conclusiveng deteraine Taget responsibirty 07ctor, contractual arrangements#

Page 33 performance of "offeror" functions under the HMR. For example, transfer of ownership of the hazardous materials from the oil company to the purchaser does not, in itself, absolve the oil company of responsibility under the HMR for performance of "offeror" functions or impose them upon the purchaser. On the other hand, the oil company's original ownership does not necessarily result in the oil company being responsible under the HMR for performance of all "offeror". functions. The ownership of ¿transportation of hazardous materials is only one of many the hazardous materials before, during or after the relevant factors which must be considered in determining regulatory liability under the HMR. Surade George". Chief • ounsel Research and Special Programs Administration MAY 1 6 1988 ISSUED: CERTIFIED MAIL - RETURN RECEIPT REQUESTED#

Page 4Interpretation 88-1-RSPA: ABSTRACT All relevant facts are considered in determining which persons are responsible, as offerors (the legally correct term, of which "shipper" is one frequently used synonym) of hazardous materials for transportation in commerce, for complíance with 49 CFR Parts 171, 172, and 173 as well as other HMR provisions imposing responsibilities upon offerors of. hazardous materials. person who performs, attempts to perform, or, under the circumstances involved, is contractually or otherwise responsible to perform, any of the functions assigned to the offeror or ashipper by the HMR is legally responsible under the HMR for their proper performance. Performance or attempted performance of any offeror or shipper functions may be evidence of responsibility under the HMR for performance of other offeror or shipper functions. ownership, is necessarily determinative of that responsibility. No single commercial act, such as sale or transfer of#

Page 5Interpretation 88-1-RSPA: KEY WORDS Hazardous Materials, Offer of for transportation Offeror Offering Shipper •#

Page 6.:... Interpretation 88-1-RSPA: SECTIONS AFFECTED 49 CFR 171.1 49 CFR 171.2 49 CFR 172.3 .. 49 CFR 173.1 > 49 CFR 173.22#