PHMSA Releases Hazmat FAQs on HMR Applicability

Posted on 12/9/2022 by Roger Marks

US DOT PHMSA plans to compile and publish several Frequently Asked Questions (FAQ) documents to provide clear information about compliance for hazardous materials shippers, manufacturers, and other stakeholders.

The first batch of hazardous materials FAQs was released on December 9, 2022 in the Federal Register. This first Q&A focuses on the applicability of the Hazardous Materials Regulations (HMR)—who must comply with the regulations and what those rules cover, in other words.

We have reproduced the twelve questions and answers from PHMSA's notice below. 

Q1. Is a federal, state, or local government agency subject to the HMR?

Answer: Pursuant to Sec. 171.1(d)(5), a federal, state, or local government that transports hazardous materials for non-commercial governmental purposes using its own personnel is not engaged in transportation in commerce and, therefore, is not subject to the HMR.

As specified in Sec. 171.1, the HMR governs the safe transportation of hazardous materials in intrastate, interstate, and foreign commerce. The term "in commerce'" does not include a federal, state, or local government that transports hazardous materials for its own use, using its own personnel, and motor vehicles, aircraft, or vessel under its control.

Q2. Are state universities subject to the HMR when transporting hazardous materials?

Answer: A state agency--such as a state university--that transports hazardous materials for its own non-commercial use, using its own personnel and vehicles, is not engaged in transportation in commerce and, therefore, is not subject to the HMR. 

Q3. Is a hazardous material transported on private roads subject to the HMR?

Answer: Section 171.1(d)(4) states that the transportation of hazardous materials entirely on private roads with restricted public access is not subject to the HMR. Please see Q4.

Q4. Is a hazardous material subject to the HMR that only crosses a road with public access?

Answer: The transportation of hazardous materials that takes place by motor vehicle and within a contiguous plant boundary is not subject to the HMR. However, intra-plant transport that utilizes or crosses a public road is subject to the HMR during that portion of the transportation unless access to the public road is restricted by gates, traffic signals, guard stations, or similar controls, in accordance with Sec. 171.1(d)(4). Please see Q3.

Q5: Are hazardous materials installed or used in or on a motor vehicle (e.g., gasoline in the motor vehicle's fuel tank) subject to the HMR?

Answer: Hazardous materials that are installed or used in or on a motor vehicle such as the motor vehicle's fuel, suspension, or safety systems are not subject to the HMR. Fuel systems and safety equipment may be subject to the Federal Motor Carrier Safety Regulations (FMCSR) and National Highway Traffic Safety Administration (NHTSA) requirements.

Q6. Is the filling of a package with a hazardous material subject to the HMR if it is not being offered for transportation in commerce?

Answer: The answer is no. However, if there is a chance of future transportation in commerce, the stakeholder should consider placing that hazardous material in packagings suitable for transportation of that material in commerce to minimize safety risks associated with its re-packaging.

Q7. Are stationary (storage) tanks containing a hazardous material such as propane subject to the HMR?

Answer: The answer is no, unless the tank is transported in commerce containing a hazardous material or its residue or if it is represented and maintained as a DOT packaging usable for hazmat transportation.

Q8. Are hazardous materials being transported for personal use subject to the HMR? For example, are pesticides that are transported from a store by individuals to treat their garden subject to the HMR?

Answer: The answer is no. Under part 171, the phrase "in commerce'" means in furtherance of a commercial enterprise. Transportation in a private motor vehicle for personal use is not considered in furtherance of a commercial enterprise even when transported in a leased or rented vehicle.

Q9. Are privately-owned Department of Transportation (DOT) cylinders used for SCUBA diving subject to the HMR even when not transported in commerce?

Answer: A SCUBA tank that is represented as conforming to HMR requirements-- i.e., marked with a DOT specification marking--must be maintained by the owner of said SCUBA tank in accordance with the applicable specification requirements whether or not it is in transportation in commerce.

PHMSA Releases Hazmat FAQs on HMR Applicability

Q10. Are government-owned hazardous materials transported for government purposes by contractor personnel subject to the HMR?

Answer: The answer is yes. As provided in Sec.  171.1(d)(5), the HMR do not apply to transportation of a hazardous material in a motor vehicle, aircraft, or vessel operated by a federal, state, or local government employee solely for noncommercial federal, state, or local government purposes. However, contractor personnel are not considered government employees and the provisions of the HMR apply.

Q11. Are gasoline cans transported by a landscaping company by motor vehicle subject to the HMR?

Answer: Commercial businesses--such as landscaping, swimming pool services, or construction companies--transporting hazardous materials are considered "in commerce'' and subject to the HMR. However, when used in support of a business, the HMR provides an exception in Sec. 173.6 for the transport of "materials of trade.'"

Q12. Are household hazardous wastes transported by a private person to a county drop-off facility subject to the HMR?

Answer: The answer is no, provided the household hazardous wastes are the individual's personal property and he or she is not engaged in a commercial activity, such as a landscaping company or carpentry service.

These answers are not legal requirements. They are meant to clarify, explain, and help stakeholders to interpret the regulations. By making this information easier to find, DOT hopes to eliminate repeated requests for specific Letters of Interpretation.

Interested stakeholders can see PHMSA's announcement, including the text of the FAQs and responses to public comments in the December 9 Federal Register.

PHMSA presented a webinar concerning its FAQ initiative and the process for requesting letters of interpretation in June 2022. A recording of the session is available on YouTube.

Lion's FAQ focused on hazmat training requirements for shippers is available on our website: Hazmat Training FAQ

2023 Hazmat Training Schedules Available Now 

The final hazmat shipper webinar of 2022 is next week! On December 19, join us for webinar training that covers the latest IATA DGR requirements that air shippers must know for 2023. 

In 2023, join Lion for an in-person workshop to develop the expertise needed to classify and name hazardous materials, package hazmat, mark and label packages, fill out shipping papers, and comply with DOT reporting and recordkeeping mandates. 

The 2023 Training Schedule of hazmat shipper workshops and webinars is available now, and enrollment is open! 

Tags: DOT compliance, hazardous materials, hazardous materials regulations, hazmat FAQ, materials of trade

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