Interpretation Response #18-0045
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
Response Publish Date:
Company Name: Wells Fargo Rail
Individual Name: Robert Sech
Location State: TX Country: US
View the Interpretation Document
Response text:
February 25, 2019
Robert Sech
Wells Fargo Rail
9377 West Higgins Road
Suite 600
Rosemont, IL 60018
Reference No. 18-0045
Dear Mr. Sech:
This letter is in response to your March 21, 2018, email and April 10, 2018, subsequent phone conversation with a member of my staff requesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to tank cars. You explain that Wells Fargo Rail owns a fleet of approximately 6,000 tank cars but does not own a tank car manufacturing or repair facility. You ask if Wells Fargo Rail would meet the definition of a hazmat employer and have hazmat employee(s) based on performance of specific business operations referenced below.
We have paraphrased and answered your questions as follows:
Q1. You ask if a tank car owner would be defined as a hazmat employer if the tank car owner does not own or manage a tank car repair or manufacturing facility.
A1. Based on the information provided, it is the opinion of this Office that Wells Fargo Rail is considered a hazmat employer because the company employs a person to oversee the qualification and maintenance program for DOT specification tank cars (i.e., maintains DOT specification tank cars). Per the definition in § 171.8, a hazmat employer is a person who employs or uses at least one hazmat employee to perform a function related to the transportation of hazardous materials in commerce; causes hazardous materials to be transported in commerce; or designs, manufactures, fabricates, inspects, marks, maintains, reconditions, repairs or tests a package, container, or packaging component that is represented, marked, certified, or sold by that person as qualified for use in transporting hazardous materials in commerce.
Q2. Provided a tank car owner is not considered a hazmat employer, you ask if an employee who approves the financial aspects for tank car repair estimates and invoices would be defined as a hazmat employee in accordance with § 171.8.
A2. It is the opinion of this Office that an employee who manages tank car estimates and invoices for repairs is not considered a hazmat employee solely on the basis of performing that specific business function.
Q3. You ask if all repairs done by a certified tank car repair facility, in accordance with § 179.7(d), require the repair facility to establish written repair procedures to employees of the facility that work performed on the tank car meets specifications, the Association of American Railroads (AAR) approval, and the owner’s acceptance criteria. Moreover, you ask if an owner’s acceptance criteria can simply comply with the specification and AAR approval.
A3. Regarding the requirements for written procedures, the answer is yes. According to § 179.7(d), each tank car facility shall provide written procedures to its employees to ensure that work on the tank car conforms to the specification of the tank car, AAR approval, and the owner’s acceptance criteria.
Regarding whether the acceptance criteria can be limited to the specification and AAR approval, the answer is no. However, if a tank car owner does not have acceptance criteria, the owner of the tank car may provide written confirmation to allow the tank car facility to use the acceptance criteria from another tank car owner. Please note, each tank car facility must incorporate the tank car owner’s Qualification and Maintenance program into their own Quality Assurance Program for the tank car facility to use another tank car owner’s acceptance criteria.
Q4. You ask if the tank car owner is in compliance with § 180.513(b) and the Continuing Analysis and Surveillance System in accordance with § 180.509 if the certified tank car facility (both new tank car manufacturing or repair) has provided drawings and specifications that show the tank car meets the requirements. In addition, you ask whether the tank car owner has a responsibility to ensure the tank car builder and/or repair facility has ordered and applied the AAR approved materials as required on the drawings/specifications.
A4. A tank car facility is responsible for reporting all work performed and observed damage, deterioration, failed components, or non-compliant parts to the tank car owner. As a tank car owner, Wells Fargo Rail is responsible for furnishing written instructions (owner’s acceptance criteria) that provides tank car facilities with information to work on a tank car. In addition, the tank car owner is responsible for ensuring each specification tank car conforms to the requirements of Part 179 and Part 180 (Subpart F) in accordance with the HMR and the requirements of the AAR approval.
I hope this information is helpful. Please contact us if we can be of further assistance.
Sincerely,
Dirk Der Kinderen
Chief, Standards Development Branch
Standards and Rulemaking Division
171.8, 179.7(d), 180.513(b), 180.509