Interpretation Response #04-0008 ([Koch Mineral Services, LLC] [Mr. Stephen P. Nowicki])
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
Response Publish Date:
Company Name: Koch Mineral Services, LLC
Individual Name: Mr. Stephen P. Nowicki
Location State: KS Country: US
View the Interpretation Document
Response text:
May 26, 2004
Mr. Stephen P. Nowicki Reference No. 04-0008
Director of Transportation Compliance
Koch Mineral Services, LLC
4111 East 37th Street North
Wichita, KS 67220
Dear Mr. Nowicki:
This is in response to your letter regarding inspection of tank cars prior to movement under the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). You describe the following scenario:
KHLP (Koch Hydrocarbon LP) had five full-service leased tank cars containing “Residue, last contained Petroleum Gas, Liquefied (Propylene), 2.1, UN1075” sitting idle at the Superior, Wisconsin facility of a supplier not corporately related to any Koch Industries, Inc. company. All five cars had been at this facility for approximately six weeks when, through no action of KHLP, they were tendered back to the serving carrier, BNSF, with no stated destination. The Superior facility did not tender a bill of lading or other shipping paper to the railroad. When KHLP ultimately decided on the next loading point it asked the Superior facility to bill the cars to that point. The Superior facility refused to provide shipping documents and, therefore, KHLP prepared the necessary documentation.
We note concerning your letter that the tank cars in question were not “empty;” rather, they contained residue amounts of Liquefied Petroleum Gas. You ask these questions:
Q1. Did KHLP have a duty to physically inspect the railcars to meet the requirements of 173.31 (d)?
Al. Yes, once KHLP decided to prepare the shipping documents, it became an offeror and was responsible to “determine that the tank car is in proper condition and safe for transportation.”
Q2. Hypothetically, would the Superior facility have a duty to physically inspect the railcars according to 173.3 1 (d) before “releasing” them to a railroad without billing?
A2. Yes. When the Superior facility tendered the cars back to the railroad, it was responsible as an offeror to make the same determination that KHLP had to make when KHLP decided to prepare the shipping documents. In fact, given the facts as stated by you, when the Superior facility “released” the cars without shipping papers, it was in violation of § 172.200 et seq. Further, and again relying on the facts as you state them, it appears that BNSF was in violation of § 174.24 for accepting and moving the cars without receiving shipping papers.
Q3. If the Superior facility did physically inspect the cars, would KHLP also have to inspect
the cars as the most current offeror of the empty tank cars?
A3. The HMR place a duty on the offeror of a tank car containing hazardous materials to determine that the car is in proper condition and safe for transportation. Section 173.31 (d) lists the minimum external visual inspection that must be performed prior to offering the car. Under the HMR, more than one entity may be responsible for the performance of offeror functions prior to offering a shipment for transportation. In the scenario you describe, if the Superior facility physically inspected the cars while KHLP prepared the shipping documentation for the cars, both entities would be considered ofterors for purposes of the HMR and would be responsible for performing their respective offeror functions in accordance with the HMR. In this case, KHLP would not be required to perform the physical inspection of the cars required under § 173.31 (d).
I trust this satisfies your request.
Sincerely,
Edward T. MazzuIlo
Director, Office of Hazardous Materials
Standards
173.31
Regulation Sections
Section | Subject |
---|---|
173.31 | Use of tank cars |