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U.S. Department of Transportation U.S. Department of Transportation Icon United States Department of Transportation United States Department of Transportation

Interpretation Response #11-0306 ([Transportation Department Enforcement Division] [Mr. Carlisle Smith])

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date:

Company Name: Transportation Department Enforcement Division

Individual Name: Mr. Carlisle Smith

Location State: OH Country: US

View the Interpretation Document

Response text:

May 16, 2012

 

 

Mr. Carlisle Smith
Supervisor Hazardous Materials Program
Transportation Department
Enforcement Division
180 East Broad Street
Columbus, Ohio 43215-3793

Ref No. 11-0306

Dear Mr. Smith:

This responds to your December 12, 2011 email regarding the applicability of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask if a 500-gallon bulk package containing diesel fuel residue, transported on public roads, in a commercial vehicle, for personal use is subject to the requirements of the HMR. You reference two letters of interpretation issued by PHMSA, one issued on April 16, 2004 (Ref. No.: 03-0223) and the other issued on May 11, 2011 (Ref. No.: 11-0007).

Under Federal hazardous materials transportation law (Federal hazmat law), "transports" or "transportation" is defined as "the movement of property and loading, unloading, or storage incidental to the movement." Federal hazmat law also defines "commerce" as "trade or transportation in the jurisdiction of the United States between a place in a State and a place outside of the State; that affects trade or transportation between a place in a State and a place outside of the State; or on a United States-registered aircraft." (See 49 U.S.C. 5102(1) and (13).) Historically, PHMSA also interprets "in commerce" to mean trade or transportation in furtherance of a commercial enterprise. This interpretation is based in part on the Federal hazmat law's definition of "person" as including "a government, Indian tribe, or authority of a government or tribe that (i) offers hazardous material for transportation in commerce; (ii) transports hazardous material to further a commercial enterprise; or (iii) designs, manufactures, fabricates, inspects, marks, maintains, reconditions, repairs, or tests a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous materials in commerce"." See 49 U.S.C. 5102(9); see also 49 CFR § 171.8.

PHMSA has reviewed both letters and stands by the May 11, 2011 letter which states that non-commercial transportation of hazardous materials is not subject to the HMR. In a final rule [Docket No. RSPA"98"4952 (HM"223)], titled "Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage," which became effective on June 1, 2005, we revised § 171.1 to clarify the applicability of the HMR to transportation functions. We believe that the inconsistency in the responses is a result of a better understanding of the meaning behind the term "non-commercial" transportation under the HMR.

As a general matter, the transportation of a hazardous material by motor vehicle for personal use of the driver is not subject to requirements in the HMR " although it may be subject to other Federal, State, or local requirements. In fact, guidance issued by the Federal Motor Carrier Safety Administration regarding 49 CFR § 390.5 states that "if the driver is operating a commercial motor vehicle at the direction of the motor carrier, it is considered interstate commerce and is subject to the Federal Motor Carrier Safety Regulations (FMCSRs). If the motor carrier is allowing the driver to use the vehicle for private personal transportation, such transportation is not subject to the FMCSRs." Your request for interpretation did not contain enough information for PHMSA to confirm whether the driver was transporting the 500-gallon bulk package containing diesel fuel residue for personal use, nor did it indicate that the motor carrier allowed the driver to use the vehicle for personal transportation. Any hazardous material that the driver is transporting on behalf of the motor carrier is subject to the HMR.

I hope this answers your inquiry. If you have further questions, please contact this office.

Sincerely,

 

Ben Supko
Acting Chief, Standards Development Branch
Standards and Rulemaking Division

171.8, 171.1

Regulation Sections

Section Subject
171.1 Applicability of Hazardous Materials Regulations (HMR) to persons and functions
171.8 Definitions and abbreviations