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The Government Employee Exemption to the HMR – 49 CFR 171.1(d)(5)

The Government Employee Exemption to the HMR – 49 CFR 171.1(d)(5)

At its beginning, 49 CFR 171.1 identifies the applicability of the USDOT/PHMSA regulations for the transportation of hazardous materials (aka: the Hazardous Materials Regulations, or the HMR) to the following:

  • Persons who transport hazardous materials in commerce.
  • Persons who cause hazardous materials to be transported in commerce.
  • Persons who manufacture or maintain a packaging to be used for the transportation of a HazMat in commerce.
  • Anyone who indicates by marking or other means that a HazMat is present in a packaging or conveyance being transported in commerce when it is not.
  • Anyone who tampers with a package or transport conveyance of a HazMat in transportation or the markings, labels, placards, or shipping description of a hazardous material being transported in commerce.

In sum, the HMR applies to any activity a person may engage in that involves the transportation in commerce of a hazardous material.

However, 49 CFR 171.1(d) identifies, “Functions not subject to the requirements of the HMR.”  The subject of this article is to look at one of the seven exempt functions:  The Government Employee Transportation Exemption of 49 CFR 171.1(d)(5).

49 CFR 171.1(d) reads:

Functions not subject to the requirements of the HMR.  The following are examples of activities to which the HMR do not apply:

49 CFR 171.1(d)(5) reads:

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.

That seems pretty clear cut – and frighteningly broad – in its scope.  Let’s take a closer look:

  • The exemption is limited solely to government employees.  It is not available to contractors working on the government’s behalf even if the remaining conditions of the exemption are met (LOI 06-0225).
  • The exemption is available for any level of government activity:  Federal, state, or local.
  • The exemption is available for three of the four modes of transportation identified in the HMR:  motor vehicle (highway), aircraft, or vessel.  Interestingly, rail transportation is not an option for this exemption.
  • It is not necessary for the motor vehicle, aircraft, or vessel to be government-owned.
  • The operator of the vehicle, however, must be a government employee.
  • The scope of the exemption is limited only to the transportation of a hazardous material.  Other activities related to HazMat transportation undertaken by a government employee may be subject to the HMR, such as:
    • Offering a hazardous material for transportation in commerce to another person, ie. the Carrier.
    • The manufacture, testing, design, etc. of a packaging used to transport a HazMat in commerce.
  • The purpose of the transportation must be “solely for noncommercial Federal, state, or local government purposes.”  Noncommercial is the key word here since the PHMSA/USDOT does not consider transportation for noncommercial governmental purposes to be transportation in commerce (LOI 11-0306).  So, how is “commerce” defined by the PHMSA/USDOT?

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.

PHMSA also interprets “in commerce” to mean trade or transportation in furtherance of a commercial enterprise.

I think it safe to say, that in general, a government employee performing the work of a government agency is not engaged in a commercial enterprise.

The Government Employee Exemption to the HMR even applies to the transportation of Radioactive (Class 7) Material. (LOI 07-0043)

 

 

 

Interestingly, the Government Employee Exemption is reinforced by a careful reading of the PHMSA/USDOT definition of a “person” at 49 CFR 171.8.

The definition of person at 49 CFR 171.8 reads:

Person means an individual, corporation, company, association, firm, partnership, society, joint stock company; or a government, Indian Tribe, or authority of a government or Tribe, that offers a hazardous material for transportation in commerce, transports a hazardous material to support a commercial enterprise, or 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 material in commerce. This term does not include the United States Postal Service or, for purposes of 49 U.S.C. 5123 and 5124, a Department, agency, or instrumentality of the government.

Here we see that a government or authority of a government  can be a “person” if it…

  • Offers a HazMat for transportation in commerce.
  • Designs, manufactures, tests, etc… a HazMat packaging for transportation in commerce.

These two activities are included in the definition of a “person” whether they are for a commercial or non-commercial purpose.

And finally, a government or authority of a government can be a “person” if it…

  • Transports a HazMat to support a commercial enterprise.

It is the last of the three activities that allows for the Government Employee Exemption at 49 CFR 171.1(d)(5).  Refer to LOI 10-0212 for more insight into the definition of a “person”.

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Now for the frightening part.  Does this mean that a government employee performing a government function for non-commercial purpose could load several dozen drums of explosives in a truck, plane, or boat and transport them without regard to the Hazardous Material Regulations of the PHMSA/USDOT?

Yes.

Really!?The Government Employee Exemption at 49 CFR 171.1.(d)(5) can come as a shock

Yes.  Really.

Whoa.

Now, before we go too far, be aware that there are other limitations on the transportation of hazardous materials other than the HMR that are not considered in-depth here.  They include, but are not limited to the following:

  • The regulations of other government agencies besides those of the PHMSA may be applicable; e.g. USEPA or OSHA.
  • A state with an authorized hazardous waste program may regulate the transportation of hazardous waste within its borders.
  • The government agency transporting the HazMat may have internal policies that limit what can be transported.
  • Local government may regulate the transportation of HazMat within its jurisdiction.
  • Common sense.
  • See also the last paragraph of LOI 10-0213.

The Government Employee Exemption at 49 CFR 171.1(d)(5) notwithstanding, a government agency or branch of the military will be subject to the Hazardous Material Regulations of the PHMSA/USDOT.  Contact me with any questions you may have about the transportation of hazardous materials and when the HMR applies to you; especially the requirement to provide initial and triennial training for your HazMat Employees.

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