Interpretation Response #15-0106 ([Mr. Daniel Zirzow])
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
Response Publish Date:
Company Name:
Individual Name: Mr. Daniel Zirzow
Location State: OH Country: US
View the Interpretation Document
Response text:
February 11, 2016
Mr. Daniel Zirzow
5287 Broad Blvd.
N. Ridgeville, OH 44039
Ref No.: 15-0106
Dear Mr. Zirzow:
This responds to your email request for clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) applicable to the transportation of display fireworks. Your email describes three different transportation scenarios and you ask whether they are considered in commerce for the purposes of the HMR.
Scenario 1: A licensed individual transports Division 1.3 display fireworks to a private residential property, such as a farm, for non-commercial purposes. You ask whether such transportation is subject to the HMR.
Response 1: The answer is no. As provided by § 171.1(d)(6), the transportation of a hazardous material by an individual for non-commercial purposes in a private motor vehicle, including a leased or rented motor vehicle, is not subject to the HMR.
Scenario 2: A commercial entity, such as a restaurant or winery, compensates a fireworks club monetarily for the staging of a fireworks display on its property. The fireworks club does not compensate the employee who provides the display. Further, the restaurant or winery does not charge admission to view the display.
If a fireworks club or organization stages a fireworks display at a commercial establishment, is transportation of the display considered in commerce for the purposes of the HMR? If so, does transportation of the fireworks display to the property require a driver with a Hazardous Materials Endorsement on a Commercial Driver’s License (CDL)? Would it matter if the commercial establishment compensated a club member individually for the display or the fireworks club directly?
Response 2: The answer is yes, the scenario you describe is considered in commerce for the purposes of the HMR. Historically, PHMSA 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.
Because any amount of a Division 1.3 explosive on a transport vehicle requires placarding, a driver is required to have a Hazardous Materials Endorsement on his or her CDL in accordance with the Federal Motor Carrier Safety Regulations at 49 CFR 383.93. Lastly, the type and level of monetary compensation and to whom it is rendered for services performed in this scenario is irrelevant as the transportation of the display fireworks is ultimately for the furtherance of a business enterprise and not solely for non-commercial purposes.
Scenario 3: A commercial entity such as a sporting event or an RV park/campground compensates a fireworks club monetarily (at cost) for the staging of a fireworks display on its property. The fireworks club does not compensate the employee who stages the display. Further, the sporting event or an RV park/campground may charge admission to view the display.
Under this scenario, if a fireworks club or organization stages a fireworks display at a commercial establishment, is transportation of the display considered in commerce for the purposes of the HMR? If so, does transportation of the fireworks display to the property require a driver with a Hazardous Materials Endorsement on a CDL?
Response 3: See the response for Scenario 2.
I hope this information is helpful. Please contact us if we can be of further assistance.
Sincerely,
T. Glenn Foster
Chief, Regulatory Review and Reinvention Branch
Standards and Rulemaking Division
171.1(d)(6), 171.8,