How To Determine Cylinder Ownership

The Hazardous Materials Regulations (HMRs) state that a “cylinder filled with a hazardous material may not be offered for transportation unless it was filled by the owner of the cylinder or with the owner’s consent.” 49 C.F.R. §173.301(e). That subsection does not prohibit filling a cylinder without the owner’s consent, but merely the transportation in commerce of a cylinder filled with the owner’s consent.

The HMRs do not expressly state how a cylinder filler must establish the consent of an owner to fill a cylinder. In 1987, however, the chief counsel of the then Research and Special Programs Administration issued an interpretation, Int. No. 87-2-RSPA, of this regulatory requirement regarding two specific questions:

  • Is the consent of the owner necessary if the cylinder is not offered and accepted for transportation (i.e., shipped)?
  • Is there any specific required method (i.e., written proof) to establish the ownership of a cylinder?

The entire interpretation is as follows:

Under §173.301(b),1 there is no prohibition against charging a cylinder without the consent of the owner of the cylinder, provided the charged cylinder is not offered for transportation in commerce. Therefore, if a person who offers a cylinder for transportation is also the person who charged it, the question of whether that person may be held accountable in a particular case depends on whether he obtained the permission of the cylinder owner to charge the cylinder. If, for example, the refiller who offered the cylinder for transportation received it from the owner, then permission to fill the container can be inferred under [§173.301(e)]. However, the refiller may be held accountable under [§173.301(e)] if he offers a container for transportation that he received from a person who he “knows” is not the owner of the cylinder. Applying the definition of “knowledge” in 49 CFR 107.299, a person has the requisite knowledge when he actually knows or should have known that an individual does not own a container. Written proof of ownership is not required. To insulate oneself from liability under [§173.301(e)], the person who offers the cylinder for transportation should have sufficient “objective” facts to establish that a particular person owned the container.

If a customer presents a cylinder for filling with another company’s name on the neck ring, that would likely be sufficient to raise the question of ownership. The filler would then have constructive knowledge (“should have known”) that the presenter did not own the cylinder.

Of course, the conclusive way to establish ownership in this scenario would be for the presenter of the cylinder to show a certificate of title or bill of sale indicating the serial number of the cylinder.

Alternatively, the filler may demand that the presenter of the cylinder sign and date a form certifying that he is the owner of the cylinder or has the permission of the owner to fill the cylinder. The form should list the serial number(s) of the cylinder(s) to be filled. Without a document of title, however, the question is whether a customer signing the certification form is sufficient to rebut a presumption raised by the presentation for filling of a gray cylinder painted with another company’s name. Other facts may be important to establish ownership or consent:

  • Is this a known customer of the filler, or a one-time walk-in?
  • Can the customer plausibly explain how he came into possession of the cylinders containing the other company’s name?
  • Has the customer repeatedly presented this other company’s cylinders for exchange?

To be certain in establishing consent, the better course of action would be for the filler’s employees accepting cylinders for filling to telephone the other company listed on the cylinder, identify the serial number of any cylinders presented for filling, and request if the cylinders are leased or have been sold before filling those cylinders and offering them for transportation.

1 This provision was subsequently recodified as §173.301(e) without any substantive change.

Gases and Welding Distributors Association
Meet the Author
GAWDA Government Affairs and Human Resources Legal Consultant Richard P. Schweitzer, Esq., is president of Richard P. Schweitzer, PLLC, in Washington, D.C. Members can reach him at 202-223-3040 and at