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The Transportation of HazMat and the Regulations of the PHMSA and the FMCSA

The Transportation of HazMat and the Regulations of the PHMSA and the FMCSA

The transportation in commerce of any quantity of a hazardous material will be subject to the Hazardous Material Regulations of the PHMSA.  In general, the regulations of the FMCSA will apply to the persons that transport passengers or property by motor vehicle (ie. carriers).  Both agencies, however, have exceptions and exemptions from full regulation.  Determining the applicability of these two distinct sets of regulations to the transportation of hazardous materials is the purpose of this article.

First, let’s take a look at the regulatory agencies involved.  Both of them administrations within the US Department of Transportation:

  • The Pipeline and Hazardous Materials Safety Administration (PHMSA) – Regulates the the domestic transportation in commerce of materials by pipeline, but also the domestic transportation of hazardous materials (HazMat) by motor vehicle, rail, air, or vessel.  Its regulations are known as the HMR: the Hazardous Materials Regulations.
  • The Federal Motor Carrier Safety Administration (FMCSA) – Regulates the domestic transportation by commercial motor vehicle of property and persons.  Its regulations (known as the Federal Motor Carrier Safety Regulations or FMCSR) apply primarily to interstate transportation and not intrastate.  However, when it does not apply to intrastate transportation, a state agency will enforce its own regulations that will likely mirror those of the FMCSA.

Now, let’s define some of the key terms we’ll use in this article:

(49 CFR 390.5) Interstate commerce means trade, traffic, or transportation in the United States—(1) Between a place in a State and a place outside of such State (including a place outside of the United States);(2) Between two places in a State through another State or a place outside of the United States; or(3) Between two places in a State as part of trade, traffic, or transportation originating or terminating outside the State or the United States.

(49 CFR 390.5) Intrastate commerce means any trade, traffic, or transportation in any State which is not described in the term “interstate commerce.”

(49 CFR 390.5) Gross combination weight rating (GCWR) means the value specified by the manufacturer as the loaded weight of a combination (articulated) motor vehicle. In the absence of a value specified by the manufacturer, GCWR will be determined by adding the GVWR of the power unit and the total weight of the towed unit and any load thereon.

(49 CFR 390.5) Gross vehicle weight rating (GVWR) means the value specified by the manufacturer as the loaded weight of a single motor vehicle.

Don’t confuse the GCWR, “the value specified by the manufacturer…” with the Gross Combination Weight (GCW) which is the actual combination weight of the motor vehicle.  Similarly, the GVWR differs from the Gross Vehicle Weight.

Applicability of the FMCSA regulations (FMCSR):

As stated above, in general the FMCSR apply to the motor carriers of passengers or property.  With exemptions from regulation available depending on the weight of the vehicle (rated or actual); the type of operation (interstate or intrastate); and, if applicable, the number of passengers and the amount of HazMat transported.

The applicability of the FMCSR (includes parts 350 through 399, aka:  “subchapter B of this chapter”) is found at §390.3(a):

The rules in subchapter B of this chapter are applicable to all employers, employees, and commercial motor vehicles, which transport property or passengers in interstate commerce.

So, the rules apply to commercial motor vehicles (CMV) engaged in interstate transportation.  What about intrastate?  In general, the Federal regulations of the FMCSA do not apply to intrastate transportation.  However, state regulations do apply, and in most cases the state regulations will be very similar to those of the FMCSA for interstate transportation; please check with your state to be sure.

The applicability of the regulations specific to the Commercial Driver’s License and Drug & Alcohol Regulations are slightly different than those of the rest of the FMCSR.  §390.3(b) reads:

The rules in part 383, Commercial Driver’s License Standards; Requirements and Penalties, are applicable to every person who operates a commercial motor vehicle, as defined in §383.5 of this subchapter, in interstate or intrastate commerce and to all employers of such persons.

Notice that these regulations apply to both interstate and intrastate transportation and that while both sets of regulations refer to a commercial motor vehicle (CMV), this regulation refers to a specific definition of a CMV found at§383.5 .  The exploration of the definition of a CMV reveals a significant difference in the applicability of these two regulations.

The definition of a CMV as referenced at §390.3(a) can be found at §390.5:

Commercial motor vehicle means any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle

(1) Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater; or

(2) Is designed or used to transport more than 8 passengers (including the driver) for compensation; or

(3) Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or

(4) Is used in transporting material found by the Secretary of Transportation to be hazardous under 49 U.S.C. 5103 and transported in a quantity requiring placarding under regulations prescribed by the Secretary under 49 CFR, subtitle B, chapter I, subchapter C.

Whereas the definition of a CMV referred to at §390.3(b) are found at §383.5:

Commercial motor vehicle (CMV) means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle

(1) Has a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more), whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds), whichever is greater; or

(2) Has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 pounds or more), whichever is greater; or

(3) Is designed to transport 16 or more passengers, including the driver; or

(4) Is of any size and is used in the transportation of hazardous materials as defined in this section.

A full understanding of condition (4) of the above will require review of the definition of a hazardous material in this section (§383.5):

Hazardous materials means any material that has been designated as hazardous under 49 U.S.C. 5103 and is required to be placarded under subpart F of 49 CFR part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73.

Therefore, condition (4) of the definition of a CMV does not apply to any volume of HazMat, but instead only a quantity of HazMat that requires placarding per the Hazardous Material Regulations of the PHMSA.

What’s the big deal?  The big deal is that even though both sets of regulations refer to a commercial motor vehicle, they refer to different definitions of what constitutes a CMV.  The difference between the two definitions of a CMV is found in the weight of the vehicle.  Ignoring the passenger thresholds, a few scenarios are presented below:

  • A motor vehicle engaged in interstate or intrastate commerce with a GVW of <10,001 lbs will not be subject to any of the FMCSR (or state regulations) unless it transports a quantity of HazMat that requires placarding, in which case it meets the definition of a CMV.
  • A motor vehicle engaged in interstate or intrastate commerce with a GVW of ≥10,001 lbs will be a CMV subject to the FMCSR ( if interstate) or state regulations (if intrastate only) whether or not it transports any HazMat.
  • A motor vehicle engaged in interstate or intrastate commerce with a GVW of <26,001 lbs will not be subject to the FMCSR regulations that require a commercial driver’s license for the operator unless it transports a quantity of HazMat that requires placarding, in which case it meets the definition of a CMV.
  • A motor vehicle engaged in interstate or intrastate commerce with a GVW of ≥26,001 lbs will be subject to the FMCSR regulations that require a commercial driver’s license for the operator whether or not it transports any HazMat.
  • A motor vehicle engaged in interstate or intrastate commerce with a GVW of ≥26,001 lbs that transports HazMat in a quantity that requires placarding will be subject to the FMCSR regulations that require a commercial driver’s license with the HazMat endorsement for the operator.
  • A motor vehicle engaged in interstate or intrastate commerce of any weight, if it transports a quantity of HazMat that requires placarding, will be subject to the FMCSR regulations that require a commercial driver’s license with the HazMat endorsement for the operator.

If a motor vehicle transports a placarded quantity of HazMat, then the weight of the vehicle does not matter, it is a CMV no matter which definition you utilize.  The carrier will be subject to all of the requirements of the FMCSR (or a comparable state regulation if intrastate only) and the operator will require the CDL with the HazMat endorsement.

Applicability of the PHMSA regulations (HMR):

Other than some exceptions (see below) the transportation in commerce of any quantity of a hazardous material, in any type of motor vehicle, interstate or intrastate, will be subject to the HMR of the PHMSA.  A state may enforce the HMR within its boundaries, but the regulations are those of the PHMSA.

Unlike §383.5 of the FMCSR, the HMR doesn’t define a hazardous material as an amount that requires placards.  Instead at §171.8 we read:

Hazardous material means a substance or material that the Secretary of Transportation has determined is capable of posing an unreasonable risk to health, safety, and property when transported in commerce, and has designated as hazardous under section 5103 of Federal hazardous materials transportation law (49 U.S.C. 5103). The term includes hazardous substances, hazardous wastes, marine pollutants, elevated temperature materials, materials designated as hazardous in the Hazardous Materials Table (see 49 CFR 172.101), and materials that meet the defining criteria for hazard classes and divisions in part 173 of this subchapter.

Exceptions to the HMR include:

Take care when determining if you are subject to the regulations of the PHMSA and/or the FMCSA.  If you transport any quantity of a hazardous material in commerce, it is likely that you are subject to at least some of the HMR, even if you are not subject to the FMCSR.  Please contact me with your questions about the transportation of hazardous materials.  I can help.