DEPARTMENT OF TRANSPORTATION

Research and Special Programs
Administration

49 CFR Parts 107, 171, 172, 173, 174,
175, 176, and 177

[Notice No. 92-12]

Formal Interpretation of Regulations
Issued Under the Hazardous Materials
Transportation Act

Agency: Research and Special Programs
Administration [RSPA], DOT.

Action:Interpretation of regulations.
_________________________________
Summary: This notice publishes a formal interpretation of the registration requirements for offerors and transporters of hazardous materials subject to the Hazardous Materials Regulations [HMR] issued under the Hazardous Materials Transportation Act [HMTA]. This interpretation describes activities which subject an "offeror" or "transporter" to the hazardous materials registration requirements of the HMTA. This interpretation has been rendered by the Chief Counsel of RSPA. This interpretation has been rendered by the Chief Counsel of RSPA. This interpretation is being published to provide the public with better understanding and awareness of activities which are covered by the activities which are covered by the hazardous materials registration requirements of the HMTA.. It may be particularly useful to industry members and State and local governmental officials involved in or regulating hazardous materials transportation.

FOR FURTHER INFORMATION CONTACT:
Kathleen Stokes Molinar, Attorney, Office of the Chief Counsel, Research and Special Programs Administration, Department of Transportation, Washington, DC 20590-0001 (Tel. (202)366-4400).

SUPPLEMENTARY INFORMATION:
As part of its implemention of the HMTA, 49 App. U.S.C. 1801 et seq. RSPA issues the regulations contained in the HMR [49 CFR parts 171-180}.
1nformal interpretations of the HMR frequently are issued by the Standards Division of RSPA's Office of Hazardous Materials Safety (OHMS).
Less frequently, RSPA's Chief Counsel issues formal interpretations of the HMR. These interpretations generally involve multi-modal issues and are
coordinated with other DOT agencies which together with RSPA, enforce the HMTA, (Those agencies are the U.S. Coast Guard, the Federal Aviation
Administration, the Federal Highway Administration and the Federal Railroad Administration.)
Publication of this interpretation should promote a better understanding of and improved compliance with the HMR. This opinion is available, and future interpretations will be available, on the OHMS Hazardous Materials Information Exchange (HMIX) (1-800 - 367- 9592).

Issued in Washington, DC. on October 18, 1992, under the authority delegated in 49 CFR part 106, appendix A.

Alan L. Roberts
Associate Admininistrator for Hazardous
Materials Safety.

Interpretation: No. 92-1-RSPA
Issued: October 19, 1982

Sources:
Joanna L Johnson, Esquire Counsel,
Petroleum Marketers Association of America, Washington, DC
Mr. David G. Dwisell, President, QTI Service Corporation, New Berlin, WI

Facts

Both parties request clarification of the term "offeror", for purposes of determining whether a party is required to register with the Research and Special Programs Administration (RSPA) pursuant to the hazardous materials transportation registration requirements of 49 CFR 107.601-107.620 (57 FR 30620, July 9, 1992: See also 57 FR 33416, July 28, 1992).

Petroleum Marketers Association of America (PMAA) request darification of the requirement that all motor fuel and heating who "offer" for transportation petroleum product bulk packaging, containers, or tanks having a capacity equal to or greater than 3,500 gallons, must register. PMAA request that RSPA issue an interpretation illustrating the activities which constitute "offering". More specifically, PMAA questions whether the act of "selling" standing alone is an "offeror" activity which will subject a petroleum marketer to the registration requirements.

QTI Service Corporation(QTI) requests clarification of the registration requirement as it applies to "ICC Licensed property brokers," which QTI describes as "perform(ing) the same role for freight that a travel agent fills for passengers in air transportation. "QTI states that property brokers do not take possession of freight , execute a bill of lading, publish a tariff, or quote a rate.

QTI further states that property brokers "are not considered 'shippers' for purposes of the Motor Carrier Acts." Finally, QTI asks if DOT would require a property broker to place its "DOT ID Number" on each bill of lading converting hazardous materials for which it arranges a sale.

Additionally, numerous telephone inquiries have been received by RSPA, asking whether persons who load, unload, or store hazardous materials are subject to the registration rule.

Interpretation

The hazardous materials transportation registration for persons who offer or transport certain hazardous materials in commerce. As "offeror" or "transporter" for purposes of the HMR generally. See either relevant formal interpretations at 56 FR 6758 [February 28, 1980].

Determination of "Offeror" Status

To address the "offeror" inquiries of PMAA and QTI, it necessary to determine whether the respective fuel marketer or freight broker undertake, attempts to undertake, or is obligated to perform any specific functions related to require to requirements under the Hazardous Materials Regulations [HMR], 49 CFR parts171-160. Each marketer's or broker's activities must be examined to ascertain whether any "offeror" functions are involved. This determination is made on a case-by-case basis and takes into account all relevant facts.

While hazardous materials ownership and contractual assignment of functions are factors relevant to the determination of "offeror" status, they are not conclusive. The same is true of "selling" motor fuel and heating fuel, or arranging the sale of hazardous materials which will be transported in commerce. Factors considered in determining a party's "offeror" status include functions actually preformed or undertaken by the party, and functions which the party contracts to perform. Past practices of the parties are also considered they provide evidence of the parties division of functions.

"Offeror" functions include , but are not limited to, selection of the packaging for a regulated hazardous material, physical transfer of hazardous to a carrier, classifying hazardous materials, preparing shipping papers, reviewing shipping papers to verify compliance with the HMR or their international equivalents, signing hazardous materials certifications on shipping papers, placing hazardous materials markings or placards on vehicles or packages and providing placards to a carrier.

Determination of "Transporter" Status
.
The Hazardous Materials Transportation Uniform Safety Act [HMTUSA] significantly amended the Hazardous Materials Transportation Act [HTMA] and required the registration of those who transport certain hazardous materials or cause those hazardous materials to be transported in commerce [49 app. U.S.C. 1805[c]]. The applicable regulation in the HMR implements this statutory registration requirement and applies it to person who offer those hazardous materials for transportation or transport them in foreign, interstate commerce [49 CFR 107.601]. The words "transports" and "transportation" are defined in the HMTA to mean "any movement of property by any mode, and any loading, unloading, or storage incidental thereto" [49 app. U.S.C. 1802 [15]].

Conclusion

A person undertaking no "offeror" or "transporter" activities is no subject to RSPA registration requirements. However, if a person undertakes attempts, performance of or is obligated perform, any offeror or transporter activities related to the specified hazardous materials, then that person must register. Further, any person who loads, unloads, or stores the specified hazardous materials incidental to transportation is subject to the registration requirement of the HMR.
PMAA and QTI each submitted hypothetical fact patterns concerning which activities constitute an "offering" for purposes of the RSPA registration
requirements. Further, the telephonic inquiries received by RSPA raised similar questions concerning the"transporting" of hazardous materials.
These "offeror" and "transporter" questions are set forth below, followed by RSPA's response.

Fact Pattern. #1

A is a heating fuel marketer, who buy fuel from Band sell it to C. A does not own transport vehicles, and utilizes common carriers to deliver the fuel
which it sells. A is similar to a broker, in that it never take physical possession of the fuel which it sells.

Question: Is the act of selling, standing alone, sufficient to subject A to RSPA's hazardous material registration rule?

Answer: Selling a hazardous material of the type and in a quantity covered by the RSPA hazardous materials registration rule will not standing alone, subject a not-in-possession marketer to the rule's registration requirement. However, if the marketer performs, attempts to perform, is obligated to perform, or agrees to perform any offeror or transporter function, then the marketer must register. If, for example, A prepares the shipping papers for the fuel, makes hazardous material certifications on the shipping papers place, hazardous materials markings or placards on the transport vehicle, or loads or unloads the transport vehicle,
or determines that the packaging is authorized for the specific hazardous material (see 49 CPR 173.22(a)(2), (3)), then A must register.

Fact Pattern #2

X, an "ICC licensed property broker," arranges the sale of a hazardous material. X does not take possession of the hazardous material, execute shipping papers, classify the material, or assist in loading, unloading, or storage incidental to shipment of the hazardous material. Further, X does not select the carrier which will transport the material.

Question: Is the act of arranging the sale of a hazardous material, standing alone, sufficient to subject X to the hazardous material registration rule? Must X place its registration number on its bill of lading?
Answer: Again, arranging or facilitating the sale of a hazardous material of a type and in a quantity which is covered by the HMR will not, standing alone subject a not in possession property broker to the RSPA hazardous materials registration rule. However, if the broker performs, attempts to perform, is obligated to
perform, or agrees to perform any offeror or transporter functions. the broker must register. If. for example, X prepares the shipping papers for the
hazardous material, makes hazardous material, certifications on the shipping papers, places hazardous materials marking or placards on the transport vehicle, or loads or unloads the transport vehicle, then X must register.
If X is an offeror or subject to the DOT registration rule it is not required to place its DOT registration number on any bill of lading. If X is a transporter and must register, it is not required to place its hazardous materials registration number on its bill of lading.
However, 49 CFR 107.820 mandates maintenance of a copy of the transporter's registration certificate at its principal place of business.
Additionally, it requires that:

After January 1, 1993 each motor carrier subject to the requirements of this report must carry a copy of its current Certificate of Registration issued by RSPA or another document bearing the registration number identified as the "U.S. DOT Hazmat Reg. No." on board each truck and truck tractor (not including trailers and semi-trailers) used to transport hazardous material" subject to the requirements of this of this subject. The Certificate of Registration or document bearing the
registration number must be made available upon request, to enforcement personnel.
57 FR 37900, 37902 [August 21. 1992].
An August 21, 1992 rule delayed until January 1,1993 the requirement that transporters carry proof of registration in their vehicles. However, this delay did not apply to the September 16, 1992 deadline for registration and maintenance of a copy of the Certificate of Registration at a motor carrier's principal place of business. 57 FR 37900, 37901 [August 21, 1992].

Fact Pattern #3
M, a foreign manufacturer of explosives sends a shipment of explosives on a vessel to the United States. Upon arrival of the shipment at a U.S. port facility, S a stevedoring company, off - loads the shipment and places it on a chassis for through-shipment to its ultimate destination.
Question: Assuming that the explosives are hazardous materials under the HMR, is the act of off-loading the hazardous material and placing it on a chassis for through-shipment to its ultimate destination sufficient to subject a stevedoring company to the requirements of the hazardous materials registration rule?
Answer: Yes, the HMTA states that the definition of "transports" and"transportation" includes "any movement of property by any mode, and any loading, unloading, or storage incidental thereto (49app. U.S.C. 1802(15)) If S loads or unloads the explosive. incidental to transportation, it is subject to the registration rule.
Fact Pattern #4
Upon the arrival of a ship in a U.S. port facility, T, a stevedoring company, off-loads a shipment of explosives and places it in temporary storage in its facilities awaiting through-shipment to an ultimate destination.
Question: Assuming that the explosives are hazardous materials under the HMR, does the storage activity by the stevedoring company require it to register?
Answer: T is subject to the registration requirements of the HMR.
At indicated above, this storage is incidental to the movement of the explosives, and T is, therefore, a transporter of the explosives.

[FR Doc. 92-25728 Filed 10-27-92; 8:45 am]

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